Forty-four victims of the Baby Pendo case have submitted a petition to the High Court in Kisumu, contesting the Director of Public Prosecutions’ (DPP) decision against prosecuting senior police officers for their roles in the 2017 post-election violence in Kisumu.
The petitioners seek court certification of the matter as urgent and request escalation to the Chief Justice for appointment of a panel comprising at least three judges, considering the constitutional and public interest dimensions, while halting related proceedings pending resolution of the application.
This legal action stems from protracted criminal proceedings related to the 2017 post-election violence in Kisumu County, where police operations resulted in multiple civilian fatalities, injuries, and instances of torture and sexual violence.
At the core of the petition before Justice Joe Mkutu Omindo is the death of Baby Samantha Pendo, who suffered fatal injuries during police operations in Nyalenda following the announcement of August 2017 presidential election results.
The petition alleges that the DPP improperly limited the scope of prosecution by excluding senior police commanders previously implicated in earlier investigations and charging determinations.
The document asserts that the DPP failed to provide justification for excluding senior officers initially named in prior criminal proceedings, prompting questions about transparency and accountability in prosecutorial judgments.
“The victims were denied the opportunity by the DPP and the court to present their perspectives and information regarding the amended charges,” the petitioners stated to the court.
The petition highlights that the decision occurred without victim consultation, participation, or input, which they contend violates their constitutional and legal rights under Kenya’s Victim Protection framework and applicable international agreements.
The central issue centers on whether the DPP’s prosecution of only four junior officers, while omitting eight senior commanders previously associated with command responsibility, infringes upon victims’ rights and Kenya’s commitments to accountability for grave human rights abuses.
The petition requests the High Court to suspend ongoing criminal proceedings in Kisumu Criminal Case No. E032 of 2025, contending that proceeding with a partial trial would compromise the comprehensive pursuit of justice. Additionally, the petition references an inquest into Baby Pendo’s death that reportedly determined she succumbed to blunt force trauma resulting from police actions.
“The inquest findings, presented on February 14, 2019, established that police officers stationed at Kilo Junction Area in Nyalenda during the night of August 11, 2017, and early morning of August 12, 2017, caused Baby Pendo’s death by striking her head and inflicting fatal blunt force trauma.”
“The inquest further determined that police commanders overseeing operations at Kilo Junction Area between August 11 and 12, 2017, bore responsibility for Baby Pendo’s death under the doctrine of command responsibility,” the petition partially states.
Beyond the Baby Pendo case, the petition encompasses 42 victims who report experiencing diverse forms of torture and sexual violence during the same police operations in Kisumu between August 11 and 15, 2017. The petitioners requested the court to guarantee accountability for all accused perpetrators, including senior officers.
The petition’s legal representation is spearheaded by senior counsel Paul Muite, collaborating with a consortium of human rights organizations and legal aid entities. The petitioners contended that the case presents significant legal questions necessitating resolution by a larger judicial panel.
The High Court has issued directives requiring all parties to receive the petition and accompanying documentation by the 17th of the current month. The case has been listed for mention on June 2, with the court anticipated to provide further instructions regarding the case’s progression.
Additionally, the court instructed the DPP to provide all parties with any documents he intends to utilize by the same deadline, ensuring equal access to materials prior to the next judicial proceeding.