By Dr. Owiso Owiso
Kenya’s first international crimes trial (the Baby Pendo case) can now finally proceed after four police officers, John Chengo Masha, Linah Kosgey, Cyprine Robi Wankio and James Rono, took plea on 5 May 2025. The case, which concerns crimes perpetrated in the Western city of Kisumu during post-election protests in August 2017, has dragged on for years due to a mix of prosecutorial lethargy and legal challenges mounted by the suspects (see AWA’s previous posts The Fate of Kenya’s First Domestic International Crimes Trial Hangs in the Balance and Kenya’s First Domestic International Crimes Trial Fails to Kick Off … Again). While the plea-taking is a significant step towards holding accountable police officers deemed responsible for killing tens of people and injuring others during the largely-peaceful protests, several concerns are worth highlighting.
The amended charge sheet
The amended charge sheet presented to the High Court at Nairobi only listed four suspects, down from the twelve who had been included in the initial information sheet presented by the Director of Public Prosecution (DPP) on 27 October 2022 (and dated 26 October 2022). Notably, the twelve had been identified in Chief Magistrate’s Court at Kisumu Inquest No. 06 of 2017 as potential suspects.
Effectively, the DPP exercised prosecutorial discretion, excused seven suspects and proceeded with charges against the remaining four. Those excused are Titus Yoma, Titus Mutune, Benjamin Kipkoskei Koima, Benjamin Lorema, Volker Edambo, Josphat Sensira, and Mohamed Ali Guyo. Not much in terms of an explanation or justification was provided by the DPP for this change of course, but the excused police officers are reportedly expected to become prosecution witnesses. Civil society groups have condemned the DPP’s decision not to charge the seven police officers.
The charges have, however, remained the same. The four accused persons are charged with the crimes against humanity of murder, rape and other forms of sexual violence, and torture, contrary to provisions of Kenya’s International Crimes Act, 2008 and the Rome Statute of the International Criminal Court, 1998.
The missing suspect
In amending the charge sheet, the DPP also decided not to proceed with charges against another suspect, Mohammed Baa, who has evaded authorities since 2022 when the DPP first announced its intention to charge. A warrant of arrest remains in place against Baa. The absence of Baa was one of the reasons for the delay in plea-taking (see previous post). While the DPP’s decision to sever the case by removing Baa is practical in that it enables the case to proceed, there is no indication that the authorities including the National Police Service are taking any serious measures to trace and apprehend Baa. It is likely then that Baa may evade justice.
Consequently, Counsel for victims made an application urging the Court to direct the Inspector-General of Police to immediately apprehend Baa. They further urged the Court to direct the Inspector-General of Police and the DPP to avail to the victims an official photograph of Baa so that the victims can issue public notices seeking information on his whereabouts. This application was premised on the victims’ apprehension that the National Police Service may either not be keen to apprehend Baa or was unable to do so, thereby necessitating public assistance. However, the DPP opposed this application arguing that such an order may constitute undue interference by the Court with the constitutional authority of the Inspector-General of Police. The Court will deliver its ruling on this application on 18 September 2025.
Transfer of proceedings to Kisumu
Following plea-taking, the DPP made an application to transfer the case from the High Court at Nairobi to the High Court at Kisumu, an application which was predictably opposed by the accused persons. Notably, since 27 October 2022 when the DPP first declared its intention to proceed with charges, the case and all related matters have been handled at the High Court at Nairobi, approximately 250 Km from Kisumu City, the location of crime.
A trial in Kisumu would undoubtedly bring proceedings closer to the victims/survivors and bridge the geographical and psychological distance already emerging. Distance, both geographical and psychological, from victims/survivors and affected populations has long been the bane of international crimes trials (see Lugano). Bringing the trial closer to the victims/survivors and the affected population would, hopefully, enable them to more easily participate in and engage with the trial, and also enhance the Court’s appreciation of the contextual elements of the crimes.
Similarly, submissions on this application closed on 31 July 2025 and a ruling will be delivered on 18 September 2025, though the Court has signalled that it is amenable to the transfer.
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Atrocities Watch Africa, alongside other civil society organisations, continues to monitor and report on the case.
