Sarah Wairimu Kamotho has asked the High Court to halt her ongoing murder trial and order that the case start afresh, arguing that serious legal errors during the proceedings have denied her a fair chance to defend herself in the death of her husband, Tob Cohen.
In documents filed before the High Court, Wairimu is seeking to have the proceedings at the Kibera High Court declared a mistrial. She contends that the case, which is partially heard under Criminal Case No. E001 of 2025, has been handled in a manner that violates the Constitution and cannot be corrected by continuing with the same process.
Wairimu wants the court to treat her application as urgent and hear it without delay. She is also asking that all decisions and directions issued so far be cancelled, and that the case be restarted before a different judge, excluding Justice Kavedza. In addition, she wants the court file placed before the Presiding Judge of the Nairobi High Court Criminal Division for appropriate action.
In her application, Wairimu accuses the prosecution of improperly placing what it referred to as a committal bundle onto the court’s online system. She argues that such a step is not provided for in law and amounts to an unlawful return to procedures that no longer apply. According to her, this action exposed the trial court to material it should not have accessed, raising concerns about fairness and neutrality.
She also challenges orders that allowed the prosecution to present physical documents together with an inventory, stating that the move tilted the process in favour of the prosecution and weakened the court’s independent role.
Wairimu further claims that the court relied on documents that were never lawfully introduced as evidence. She refers to a ruling delivered on 29 January 2025, where a report filed in a different court was included in the record without being produced as an exhibit, without the author being called, and without following proper admission procedures under the Evidence Act.
She also faults the court for allowing plea-taking to proceed before a medical assessment report was placed on record, saying the step was irregular and unfair.
According to her filings, the prosecution attempted to push for the case to be conducted using affidavit evidence instead of calling witnesses to testify in person. She argues that the court went on to rely on unsworn evidence and failed to administer oaths to witnesses, contrary to Section 151 of the Criminal Procedure Code.
Wairimu states that she was compelled to present her own evidence through an affidavit, a move she says exposed her to self-incrimination. She also argues that the process denied both sides the opportunity to cross-examine or re-examine witnesses, undermining the basic principles of a fair trial.
She further criticises the way the court handled preliminary issues, saying it conducted what she describes as a casual mini-trial instead of a proper trial-within-a-trial. She questions the logic of a process in which prosecution witnesses were called before and after her own testimony, describing it as legally unclear and improper.
The accused also takes issue with the prosecution referring to and producing witness statements from the bar before witnesses were called. She further objects to the reliance on her entire statement in open court, arguing that these actions reduced the proceedings to a mockery of justice.
Wairimu argues that when taken together, the actions of the prosecution and the court violated her constitutional rights under Articles 20, 25, and 50. She maintains that continuing with the trial in its current form would amount to an abuse of the court process and lead to grave injustice.
The High Court is expected to give directions on the application.
