Victims challenge DPP over dropped charges against senior cops in Baby Pendo case

Baby Pendo portrait photo. /FILE

About 44 victims involved in the Baby Pendo case have filed a petition at the High Court in Kisumu, challenging DPP’s decision not to prosecute senior police officers over the 2017 post-election violence in Kisumu.

The victims want the court to certify the matter as urgent and escalate it to the Chief Justice for empanelment of a bench of at least three judges, given the constitutional and public interest issues involved, and suspend ongoing related proceedings pending determination of the application.

The petition arises from long-running criminal proceedings linked to the 2017 post-election violence in Kisumu County, where police operations left several civilians dead, injured, or subjected to torture and sexual violence.

Central to the petition filed before Justice Joe Mkutu Omindo is the death of Baby Samantha Pendo, who was fatally injured during police operations in Nyalenda shortly after the August 2017 presidential election results were announced.

According to the petition, the DPP acted irregularly by narrowing the list of officers to be prosecuted, effectively dropping several senior police commanders who were previously named in earlier investigations and charging decisions.

It stated that the DPP did not offer any explanation for its decision to remove several senior officers who had initially been included in earlier criminal proceedings, raising concerns over transparency and accountability in prosecutorial decisions.

“The victims were also not given an opportunity by the DPP and the court to give their views and information on the amended charges,” they told the court.

The petition noted that the decision was made without any consultation with or participation or input of the victims, a move they say undermines their constitutional and statutory rights under Kenya’s Victim Protection framework and related international instruments.

At the heart of the dispute is whether the DPP’s decision to proceed only against four lower-ranking officers, while excluding eight senior officers previously linked to command responsibility, violated victims’ rights and Kenya’s obligations to ensure accountability for serious human rights violations.

The petition called on the High Court to halt ongoing criminal proceedings in Kisumu Criminal Case No. E032 of 2025, arguing that continuing with the trial against only a portion of the accused could prejudice the broader pursuit of justice. The petition also highlighted findings from an inquest into Baby Pendo’s death, which reportedly concluded that she died from blunt force trauma inflicted during police operations.

“The inquest whose findings were delivered on 14 February 2019 found that police officers deployed at Kilo Junction Area in Nyalenda on the night of 11 August 2017 and the early morning of 12 August 2017 killed Baby Pendo by striking her on the head and causing the fatal blunt force trauma”.

“It further found that police commanders in charge of the operations, 20 at Kilo Junction Area between August 11 and 12, 2017, were liable for the death of Baby Pendo under the principle of command responsibility,” the petition reads in part.

In addition to the Baby Pendo case, the petition brings together 42 victims who claim they suffered various forms of torture and sexual violence during the same police operations in Kisumu between August 11 and 15, 2017. The victims asked the court to ensure that all alleged perpetrators, including senior officers, are held accountable.

The legal team behind the petition is led by senior counsel Paul Muite, working alongside a coalition of rights organisations and legal aid groups. The petitioners argued that the case raises substantial questions of law requiring determination by an expanded bench of judges.

The High Court issued directions requiring all parties to be served with the petition and supporting documents by the 17th of this month. The matter has been scheduled for mention on June 2, when the court is expected to give further directions on how the case will proceed.

In addition, the court directed the DPP to serve all parties with any documents he intends to rely on by the same deadline, ensuring that all sides have access to the material before the next hearing date.