Officers in Baby Pendo's case want Haji to go after IG, commanders

The officers argued that the IG should have been the first person to face murder and rape charges in relation to the 2017 incident, followed by Kimeu Kingaa (then Kisumu county commander) and Geoffrey Kathurima, the then county criminal investigation officer. It emerged that Titus Yoma, who was then Kisumu's county commander, will also be charged.

They said the offences alleged by the DPP stemmed from an operation dubbed 'Post-election Mipango,' which allegedly originated from the then police bosses in Kisumu and the IG.

The officers claimed that the Independent Police Oversight Authority (IPOA) and the DPP were on a wild goose chase since at least 30 police officers identified in an inquest have not been brought to book.

"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 intend to present to the court as indicated in the information presented to court on October 27, 2022," papers filed before the High Court in Nairobi read in part.

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

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

They also claim that the court found 30 General Service Unit (GSU) officers deployed to Kachok roundabout, under the command of Chief Inspector Kyengo Masha John, be treated as persons of interest.

They also named 16 officers deployed under sector one, Nyalenda Tumaini stretch, as persons of interest. "Other than Titus Yoma who is charged as accused number one, Mr Kimeu Kingaa and Mr Geoffrey Kathurima, also commanders in the operation, were never charged and as such the information presented against the applicants reflects discrimination and bias of the respondents."

According to court documents, Yoma, Titus Mutune, Cyprian Robi and Sensera are to face rape and other sexual violence charges. They are accused of failing to ensure their juniors did not rape women during the operation.

They will also face torture as a crime against humanity. According to the charges also filed before the court, they failed to order their juniors not to use brutal force against civilians.

Sensera in his affidavit claims that the operation order placed Cyprian Rotich as commander of section 17 and Tom Ongoro as alternate commander. "But he is not among those charged in the information presented before the court but instead it is the alternate commander, who is myself. That begs the question as to whom does the fifth and sixth respondent refer to as a person of superior command."

In the case, they claimed that under the operation order, Sector 3 was under Rono and sector 13 was under Mohammed Baa as the commander. Edambo was the alternate commander.

The officers claim that the main motivation behind the intended charges was to intimidate, harass and obstruct them from carrying on with their duties.

In February 2019, Kisumu Resident Magistrate Beryl Omollo found five senior officers culpable for the infant's death and asked the DPP to take action.