Sarah Wairimu, who is being tried for the murder of her husband Tob Cohen, now wants the High Court in Kibera to declare her case a mistrial and a nullity in law.
Citing prejudice, Ms Wairimu has also asked the trial judge, Justice Diana Kavedza, to recuse herself from hearing the case and refer it to the presiding judge of the Criminal Division of the High Court for the appointment of another judge.
Cohen's body was found in a septic tank in his Lower Kabete home in July 2019, after he went missing for 54 days. Ms Wairimu was accused of his murder.
In the application filed by her recently appointed lawyer, Senior Counsel Pravin Bowry, the accused is asking the court to vacate all the rulings it has made so far and expunge all the evidence tendered to enable the trial commence de novo (to begin afresh).
“That the ongoing part-heard proceedings before the Kibera High Court Criminal Case Number 001 of 2025 be declared a mistrial and or a nullity and all the rulings and orders made so in the matter be vacated forthwith,” prays Sarah.
She is further praying that all documentary evidence referred to by the prosecution and or accepted by the trial court and all other unlawful evidence deduced or referred to in all committal bundle documents, records and reports produced in the trial be expunged from the record of the proceedings.
The accused claims in the application that “there is an apparent chain of incurable prosecutorial and judicial improprieties, as well as material and fundamental defects which have rendered the proceedings this far a nullity, unfair and partial.”
Sarah claims the constitutional safeguards guaranteed to an accused person under Articles 20 (1), 25 ©. 50(1), (2) have been breached blatantly.
She alleges that further continuing with the case will constitute to an abuse of the legal process, impair her right to a fair trial then boil down to a travesty of justice.
The accused states that the prosecution “uploaded a substantial portion of the committal bundle on the courts digital platform as part of the evidence was unlawful.”
"Prosecutorial impropriety"
The judge has been told that the prosecution has exposed to her evidentiary material which the court is not legally entitled”.
Further, the accused states that the order by the judge to avail hard-copy documents together with an inventory at the behest of the prosecution amounts to prosecutorial impropriety and therefore undermines its impartiality.
Sarah laments that the order by the judge for her to plead to the murder case on January 29,2025 before her mental assessment was done was unprocedural, unfair and contrary to the law.
“That the courts order directing Sarah to give evidence by way of an affidavit exposes her to provide self-incriminating evidence renders the trial partial,” Ms Wairimu avers.
She further claims that parties have been denied the opportunity to cross-examine and re-examine witnesses negates her trial.
She accuses the judge of conducting “mini trials” instead of a proper “trial within trial” thereby rendering the entire legal an abuse of the court process.
Sarah claims that the judge has “persistently entered the arena of conflict by making nine suo moto orders (unsolicited orders she made on her own motion).”
On January 29, 2025 the judge took a judicial notice then declared the case as “a public interest case”. And on February 26, 2025 the judge ordered the prosecution to present to the court hard copies of documents together with an inventory.
Further on April 4, 2025, the accused claims that the judge suo moto “asked her to show remorse”, while on April 4, 2025 the judge made an order that the scene of crime had been altered.
And on the same day the accused claims the judge gave another suo moto order that “the scene of crime shall be cleaned by Kibera Court Community Service Orders.”
When the application was placed before the judge, she declined to certify it as urgent.
The judge ordered Bowry to serve the office of the Director of Public Prosecutions (ODPP) within seven days.
Justice Kavedza fixed the application to be heard on January 30, 2026.
The Kibera High Court has twice declined to free her on bond, saying she has not met the legal threshold.
Justice Kavedza ordered Wairimu to remain at the Langata Women’s Prison until the defense demonstrates a change of circumstances to warrant a review of the bail decision.
