KIHURIA: Victims’ rights take centre stage in Baby Pendo case

The recent Court of Appeal ruling on March 21, rejecting senior police officers’ attempt to halt their prosecution in the tragic Baby Pendo murder case, marks a landmark moment for justice in Kenya.

While it will ultimately determine whether police officers can be held accountable under the doctrine of command responsibility—setting a crucial precedent for future prosecutions—it also affirms victims' constitutional right to participate in all criminal proceedings under Article 50(9) of the Constitution.

The Baby Pendo case stems from protests following Kenya’s August 2017 elections.

Public outcry and human rights groups pushed for accountability, leading to a judicial inquest into the death of six-month-old Samantha Pendo.

The Kisumu inquest found police responsible and faulted their commanders for failing to act.

Consequently, on October 27, 2022, the Director of Public Prosecutions (DPP) charged 12 senior officers with crimes against humanity.

The officers, accused of Baby Pendo’s murder and widespread abuses, are facing trial in R v. Titus Yoma & 11 Others, High Court Criminal Case No. E074 of 2022, popularly referred to as the “Baby Pendo case.”

Between November and December 2022, the accused challenged their prosecution through a criminal application and a constitutional petition, arguing that the charges were inadmissible, that command responsibility provisions under the Rome Statute conflicted with Kenya’s Constitution, and that the prosecution was maliciously motivated.

On July 25, 2024, the High Court dismissed their applications, ruling that their prosecution was lawful and that any challenges to command responsibility or the gravity of charges should be addressed at trial.

The Court directed them to take plea on October 3, 2024, before a different judge. Following this ruling, the suspects appealed and sought to halt the criminal proceedings at the High Court until their appeal was heard and determined.

However, on March 21, 2025, the Court of Appeal dismissed their application, allowing the trial to proceed. In their ruling, Justices Patrick Kiage, Weldon Korir, and Joel Ngugi also addressed the issue of victim participation, affirming that victims' counsel were properly before the court.

Their decision on victim participatory rights marks a systemic shift, ensuring victims are meaningfully included in criminal proceedings.

Over the years, courts have recognized victims’ rights in criminal cases, but inconsistencies in judicial interpretation have often limited their involvement.

The Court of Appeal ruling provides clarity, further cementing the Supreme Court’s landmark decision in Joseph Lendrix Waswa v. Republic, which established guidelines for victim participation.

That ruling clarified that victims cannot act as secondary prosecutors but have the right to present their views and concerns to the court. The Court of Appeal now expands this interpretation, affirming that victims must be heard at every stage of the legal process where there rights shall be affected.

“Moving to the third issue, a question as to whether the KNCHR, Utu Wetu, IJM, and LSK were properly before the Court arose during the hearing of the applications. Our short answer to this issue is that they are properly before this Court. This is because this set of respondents, pejoratively referred to as 'NGOs,' were parties and participated in the proceedings before the High Court and are thus entitled to have their day before this Court. These parties were before us representing victims of crimes being tried in Nairobi High Court Criminal Case No. E074 of 2022. As the Supreme Court has bindingly interpreted the Victims Protection Act in Joseph Lendrix Waswa v. R (2019) eKLR, victims of crimes have a right to participate actively in criminal and auxiliary proceedings concerning the crimes they suffered.” the Judges noted.

Crucially, the ruling also emphasized the need to strike a balance between the rights of the accused and those of the victims.

The court stressed that justice delayed is justice denied—not just for the accused but also for survivors of these atrocities. It noted that delays weaken justice as witnesses’ memories fade and crucial evidence deteriorates over time.

Any further postponement of the Baby Pendo trial would significantly harm victims’ right to access justice. This recognition ensures victims are not mere spectators in their own pursuit of justice.

There are growing calls from the public, including civil society organizations, for police officers responsible for violence, killings, and enforced disappearances to face prosecution.

International Justice Mission (IJM) Kenya has long represented victims pro bono in cases of police abuse of power and violence against women and children. While victims are often included in trial proceedings, they are routinely sidelined once cases move to appeal—leading to devastating consequences.

Take the case of Sharon (not her real name), a survivor of defilement represented by IJM Kenya. Her headmaster was convicted, but on appeal, the High Court overturned the judgment and sentence. Sharon only learned of his release when he sued her for malicious prosecution.

These civil proceedings retraumatized her, forcing her to recount her ordeal in court again. Had her voice been represented during the appeal, she might have been spared this painful experience. This is just one example among many.

The Court of Appeal’s ruling in the Baby Pendo case, therefore, marks a significant step forward in ensuring that victims are not marginalized in Kenya’s criminal justice system. The judgment reinforces the necessity of victim participation beyond trial, setting a precedent for other cases where victims seek justice.

In the long run, the Baby Pendo case is paving the way for a justice system that truly centres victims. It establishes a powerful legal precedent for ensuring victims remain active and meaningful participants throughout the entire legal process—not just at trial. It is now up to the legal system to uphold this crucial principle , ensuring that victims of crime are never sidelined or denied justice.

Ruth Kihuria is an Advocate of the High Court of Kenya and the Ag. Senior Manager - Justice Systems Interventions - IJM Kenya.