The widow of murdered Dutch tycoon Tob Cohen, who was left empty-handed by her husband in his will, has lost bid to stop her prosecution on grounds that it is a mistrial.
Suspect in the murder case Sarah Wairimu Kamotho wanted the High Court, Constitutional and Human Rights Division, to declare that the decision of the Director of Public Prosecution (DPP) to try her for her husband’s murder was made in bad faith.
She argued that the prosecutor wants to deny her the right to inherit the estate of her deceased husband. She said the criminal the case is founded on hearsay and built on malicious investigation process with the view to deny her the right to inherit her matrimonial properties.
Through lawyer Phillip Murgor, Senior Counsel, the widow wanted the court to issue an order suspending the murder trial until her petition is heard and determined.
But Justice James Makau ruled that his court has no powers to issue a mandatory injunction against another court of similar jurisdiction.
This is because the murder trial, in which Ms Kamotho is jointly charged with businessman Peter Karanja, is happening at the High Court criminal division.
“Pursuant to Article 165 (6) of the constitution, this court only has supervisory jurisdiction over subordinate courts and other bodies exercising quasi-judicial functions. But not on courts on concurrent jurisdiction,” stated justice Makau.
He also found that the issues raised by Ms Kamotho in the petition were substantially and directly to those in the succession case. Hence, he found the petition to be sub-judicial and res-judicata.
The judge upheld an objection lodged by the DPP and the Directorate of Criminal Investigations (DCI).
Through the Senior Assistant DPP Vincent Monda and Senior Principal Prosecution Counsel Gikui Gichuhi, the State argued that Ms Kamotho’s petition was an abuse of the court process.
They also stated that the constitutional court has no powers to grant the orders sought by Ms Kamotho in a matter that is pending before the criminal division of the High Court.
In the petition, Ms Kamotho said the murder case facing her is a mistrial because the police have violated her rights and for arresting her without a warrant.
She argued that she is entitled to half of the matrimonial home that is currently guarded by police as a crime scene.
Ms Kamotho said the police have refused to grant her access to the home because they want to hand it over to Cohen’s siblings.
“In violation of Article 40 of the Constitution and in abuse of the powers of their state offices, the respondents have continued to hold the petitioner’s jointly owned matrimonial property on the false pretense that it is a crime scene and maliciously allowed the petitioner’s home to fall into waste and destruction by taking no steps whatsoever to maintain and preserve the property an all the contents,” she said.
She wanted the court to compel the police to release her Porsche Cayenne, KBW 171 G, which she claims is her personal property and not Mr Cohen’s.
The court heard that the police claimed that the vehicle was connected to the crime but the real intention is to hand it to Mr Cohen’s siblings.
