DPP sued over dropped suspects in Baby Pendo case

The long-standing battle to have police officers answer for the gruesome murder of a six-month-old infant, Samantha Pendo, and a string of rapes in 2017 has taken a new twist, with the baby's parents, Law Society of Kenya (LSK), sexual violence survivors, and rights groups now seeking to force the DPP to charge four senior police officers whose names were dropped from the suspects list.

In their case filed before the High Court, Lenser Achieng, Joseph Oloo, 42 survivors, LSK, International Justice Mission (IJM), Kenya Human Rights Commission (KHRC) and Independent Medico-Legal Unit (IMLU) urged the High Court to halt the trial of four police officers until their bosses are also placed on the dock.

Those targeted are eight senior police officers: Benjamin Koima, Benjamin Lorema, Josphat Sensira, Mohamed Ali Guyo, Mohamed Baa, Titus Yoma, Titus Mutune, and Volker Edambo.

In 2022, following an inquest and subsequent investigations, the then Director of Public Prosecutions recommended that 12 police officers, including eight senior police officers, ought to be charged under the International Crimes Act, No.6 of 2008, with crimes against humanity of murder and torture.

However, Rono, Edambo and Boke filed a case, challenging the move. In their case, they argued that the then Inspector General of Police, followed by Kimeu Kingaa (then Kisumu County Commander) and Geoffrey Kathurima, who was then County Criminal Investigation Officer, ought to have also been charged.

They claimed that the offences stemmed from an operation dubbed ‘post-election mipango,’ which was allegedly from the then police bosses in Kisumu and the IG.

“If indeed the first, fifth, sixth and seventh respondents are out and keen to charge anyone in this matter and in the absence of discrimination, they must first start with the fourth respondent and then follow with the regional commanders instead of the persons they intent to present to the court as indicated on the Information presented in court on October 27, 2022,” the trio argued.

They allege that based on the inquest judgment, the magistrate’s court at Kisumu found that the commanders who were in charge of the operation at Kilo Junction in Nyalenda estate on the night of August 11, 2017 and early morning on August 12  should be held liable for baby Pendo’s death.

Their court papers read that according to the judgment, Chief Inspector John Thiringi, Inspector Linda Kogey, Senior Superintendent Benjamin Kipkosget Koima, Senior Superintendent Mutune Mawe and Yoma were the commanders.

At the same time, they claim, the court found that 30 General Service Unit (GSU) officers who were deployed as platoon one for operation at Kachok round about, under the command of Chief Inspector Kyengo Masha John, were treated as persons of interest. Investigations were to be carried out to determine their culpability.

Meanwhile, they also named 16 police officers who were deployed under Sector One, Nyalenda Tumaini stretch, also as persons of interest.

“ Other than Titus Yoma, who is charged as accused number one, Mr Kimeu Kingaa and Mr Geoffrey Kathurima, who were also commanders in the operation, were never charged and as such, the information presented before the court against the applicants again reflects the discrimination and bias of the respondents,” they claimed.

However, High Court Judge Kanyi Kimondo dismissed their application on July 25, 2024 and directed that they should appear for plea taking.

According to the group led by Pendo’s parents, the DPP sought to amend information on the charge sheet before Justice Margaret Muigai.  They stated that the DPP was only allowed to decide whether to continue pursuing Baa, whose whereabouts are unknown.

However, they stated that instead, the DPP went ahead to drop the eight senior officers.

Those charged are police constables John Chengo Masha, Linah Kogey, Robi Wankio, and James Rono.

Their lawyer, Senior Counsel Paul Muite, said that the exclusion of the eight was without the contribution of the victims and against transparency.

“ Given the conduct of the respondent which can only be reasonably interpreted as designed to shield from accountability senior police officers who bore command/superior responsibility for the gross violations of the rights of the Petitioners/Applicants, it is imperative that the Honourable Court intervenes to ensure that the victims of murder, torture, rape and other forms of sexual violence committed by police officers in Kisumu County between 11-15 August 2017 are not denied justice,” argued Muite.

Baby Pendo’s gruesome murder is perhaps the most litigated incident in the country. As the wheels of justice grind slowly, she remains a poster girl of police brutality and excesses, while no one in the service wants to take accountability.

Previously, four probation reports filed by the Assistant Probation Director, Milimani High Court Bernard Musitia, detail the pain of the victims, who said that despite the animosity directed at them, they were on the verge of giving up as the criminal case shuttled from one court to another over whether those senior police officers who were in charge should bear the burden of command responsibility.

The report filed before the High Court reveals that the government has yet to compensate any affected victims to date.

“The majority of the victims expressed concerns for socio-economic support, stating that their livelihoods had been significantly affected following the ordeal they underwent. Most of them voiced their appeals for compensation from the State after the suffering they had undergone, though not necessarily seeking orders for compensation in relation to this case…”

“Again, it was of concern to some victims that this matter had taken a long time to be heard in court, thus almost driving them to the verge of losing hope in terms of getting justice. Thus, it was their view that the case be fast-tracked,” the report filed on June 4, 2025, reads in part.

Musitia told the court that he went to Kisumu County for 10 days and interviewed direct victims of police brutality and those who were affected as secondary victims.

According to him, the majority had lingering scars from the aftermath of the 2017 polls.

He, however, pointed out that only a few felt that they would be re-victimised but did not ask for protection.

“ The victims, both primary and secondary, were interviewed by Probation Officers within Kisumu County between 20th and 30th May 2025. The majority of them reported having suffered trauma that was still affecting them. Some had undergone counselling, while others were still undergoing psycho-social support offered by non-state actors operating within Kisumu County. A few expressed fears of re-victimisation, but none outright expressed any need for orders for protection. Equally, there were no express fears of their safety and security since none of them had been threatened,” wrote Musitia in his report.

He, however, said that the communities of the four accused officers gave positive feedback about them. In addition, the four officers pleaded with the court to maintain the same bond terms issued when they first appeared in court.

They have been out on a Sh200, 000 personal bond.

He asked the court to consider giving them new bond terms in order to balance the issues raised by the victim.

“My lady, if the honourable court is persuaded to find the outcomes and conclusion of this social enquiry meritorious, then orders can be made for the accused person to be admitted to bond on new terms. Further orders can also be made to mitigate against the perceived concerns of the victims,” he continued.

In her separate case, her mother, Ochieng, in a blow-by-blow account, narrated what happened on the fateful night.

Court papers read that she prepared a meal for her family in the evening and after dinner, her nuclear family went to bed shortly after 9.00 pm.

At around 1.00 am on August 12, her family was woken up by noise from the neighbourhood.

 “My immediate neighbour was shouting, pleading with someone not to beat him up, citing that he was not among the protesters who were throwing stones. I woke my husband up; we were all shaken. Suddenly, we heard a loud bang on the door and the people outside were asking us to open it, but we did not. Suddenly, our door was pushed and it flung open. We usually closed it by placing one sofa set next to it since the latch was spoiled,” narrated Pendo’s mother.

It was then an officer who fired a teargas canister, forcing Ms Ochieng to find a way out of the house.

However, she said the officers had locked the door from outside and it took Mr Abanja to plead with them to open it for the sake of the children.

Court papers read that the officers first beat Abanja while his wife watched, then turned to her despite a plea that she was carrying an infant.

“I was feeling so helpless, cried, pleading with the officer, saying, “Don’t beat me, please am carrying a small child, I surrender”, but all fell on deaf ears. One of the officers beat by hand with a club while I was trying to shield the deceased and immediately another one beat me on the buttocks and while I was trying to recover from the shock another one beat the deceased on the head with a club, the blow was so much that the baby did not even cry,” she explained in an affidavit filed in support of the case.

 As a consequence of the blow, baby Pendo’s head swelled, and she began foaming at the mouth. The mother pleaded with the officers to assist in taking the child to the hospital. Instead, they instructed her to ‘do first aid and remove mucus from the mouth.’

“I was desperate to get my baby to the hospital. One bicycle rider who was very kind took us to OASIS doctor’s plaza, which we found closed. We went to Nightingale, but we were asked to go to Aga Khan Hospital. We walked all the way to Aga Khan Hospital, where the baby was admitted and she succumbed to internal bleeding 4 days later,” she narrated

Pendo’s mother said that her child would still be alive today if the police officers had heeded her cry.