Nairobi, Kenya – Sarah Wairimu Kamotho has moved to the High Court seeking to have her ongoing murder trial at the Kibera High Court declared a mistrial, citing what she describes as grave prosecutorial and judicial improprieties that have compromised her right to a fair trial.
Wairimu, who is charged with the murder of her late husband Tob Cohen, filed a Notice of Motion arguing that the part-heard proceedings in Criminal Case No. E001 of 2025 are fundamentally flawed, unconstitutional, and should therefore be nullified.
Reliefs Sought
In her application, Wairimu is asking the High Court to:
- Certify the matter as urgent and hear it on a priority basis.
- Vacate all rulings and orders issued so far in the Kibera trial.
- Restart the trial afresh before a different judge, other than Justice Kavedza.
- Place the court file before the Presiding Judge of the Nairobi High Court Criminal Division for further directions.
Allegations of Impropriety
Wairimu’s application outlines several alleged irregularities:
- Digital committal bundle: She claims the prosecution unlawfully uploaded a substantial portion of a committal bundle onto the court’s digital platform, reviving obsolete procedures and improperly exposing the trial court to evidentiary material.
- Documentary evidence: She argues the court unlawfully accepted and relied on documents not properly admitted under the Evidence Act, citing a ruling on 29th January 2025 where a report was added to the record without being marked as an exhibit or formally admitted.
- Plea-taking: She faults the court for ordering plea-taking before a medical assessment report was filed, calling the procedure irregular and unfair.
- Affidavit evidence: Wairimu alleges the prosecution sought to conduct the case through affidavit evidence instead of viva voce testimony, while the court failed to swear in witnesses and relied on unsworn evidence, contrary to Section 151 of the Criminal Procedure Code.
- Self-incrimination: She claims she was compelled to give evidence by affidavit, exposing her to self-incrimination, and that cross-examination opportunities were denied.
- Mini-trial procedure: Wairimu criticises what she terms a “casual mini-trial” instead of a proper trial-within-a-trial, arguing that the irregular calling of prosecution witnesses before and after her testimony undermined due process.
- Witness statements: She accuses the prosecution of referring to and producing witness statements from the bar before calling witnesses, and unlawfully relying on her entire statement in court.
Constitutional Grounds
Wairimu maintains that the cumulative effect of these alleged improprieties amounts to a violation of her constitutional rights under Articles 20, 25, and 50 of the Constitution. She argues that allowing the trial to proceed would be an abuse of the court process and a travesty of justice.
Next Steps
The High Court is expected to issue directions on the application, which could determine whether the Kibera trial continues or is restarted under a new judge. The case remains one of Kenya’s most closely watched criminal proceedings, given the high-profile nature of the charges and the legal questions it raises about fair trial rights and judicial procedure.
