Lawyer asks court to declare a mistrial in Sarah Cohen murder trial over irregularities

The High Court sitting in Kibera was asked to declare the ongoing murder trial against Sarah Wairimu Kamotho a mistrial, following allegations of serious prosecutorial and procedural irregularities that the defence says have fatally undermined the proceedings.

The defence sought orders declaring the part-heard trial a nullity, vacating all rulings and orders made so far, and directing that the case start afresh before a different judge to be appointed by the Presiding Judge of the Nairobi High Court Criminal Division.

When the matter came up for hearing, defence counsel Pravin Bowery insisted that the application is not one for recusal and does not question the integrity or impartiality of the trial judge.

Instead, the counsel argued that a chain of prosecutorial improprieties and unprocedural judicial actions had rendered the trial unconstitutional, unfair, and incapable of being cured.

The defence contended that the prosecution unlawfully uploaded what it described as “committal bundles” onto the court’s digital platform, despite the committal process having been abolished under Kenyan law.

According to the defence, this action improperly exposed the trial court to extensive evidentiary material that should only have been disclosed to the accused, thereby compromising the court’s neutrality.

Counsel further argued that witness statements, photographs and other documentary material were referred to and tendered from the bar without being formally produced through witnesses, marked for identification, or admitted as exhibits.

The defence also faulted the trial court for allowing and relying on unsworn evidence, conducting what it termed a “casual mini-trial” instead of a proper trial-within-a-trial, and directing the accused to give evidence by affidavit, a move said to risk self-incrimination.

Additionally, the defence raised questions over an application filed before the accused was formally charged, arguing that the court record does not show what transpired between early January 2025 and the date the accused was first presented in court.

They submitted that any ex-parte proceedings during that period would have been constitutionally unfair.

However, the Director of Public Prosecutions through lawyer Victor Nyamodi opposed the application, terming it an afterthought aimed at curing what it described as the defence’s earlier strategic decisions.

The prosecution maintained that the accused was at all times represented by competent counsel, who actively participated in the proceedings without raising objections now being advanced.

Nyamodi argued that witnesses were properly sworn, cross-examined, and that the accused voluntarily testified on oath.

He further submitted that any minor irregularities complained of did not occasion prejudice or a failure of justice.

Nyamodi said Section 382 of the Criminal Procedure Code, bars the nullification of proceedings unless a miscarriage of justice is demonstrated.

“The remedy is not for you to excuse yourself from the matter. The remedy is for them to approach the Court of Appeal and reverse those orders or rulings. It is therefore our humble submission that there is no basis for you to refer this matter to another judge to continue handling it,” said Nyamodi

The prosecution also dismissed claims relating to the digital filing of documents, he said the Judiciary’s e-filing system requires documents to be uploaded for case registration and management, arguing that the justice system must “move with the times.”

Counsel representing the victims associated themselves with the prosecution’s position, warning that the application amounted to a disguised recusal request and a delaying tactic.

They urged the court to allow the trial to proceed, stating that victims were satisfied with how the case had been handled and were keen to see it concluded without further delay.

Wairimu is the widow of the late Dutch tycoon Tob Cohen.

She is alleged to have murdered her husband on July 19, 2019 in the Lower Kabete area within Nairobi County.