Sarah Wairimu’s bid to nullify Tob Cohen's murder trial dismissed

The Kibera High Court has dismissed an application by Sarah Wairimu seeking to nullify her ongoing murder trial and have it declared a mistrial.

The accused had challenged her ongoing trial. She is facing murder charges of Dutch businessman Tob Cohen.

In a ruling delivered by Judge Diana Kavedza on Thursday, the court held that it lacked jurisdiction to grant the relief sought.

“If the applicant (Wairimu) believes that constitutional legal errors have occurred, the proper recourse lies in the appeal. Accordingly, this court finds that it lacks jurisdiction to grant the principal prayers seeking nullification of proceedings, rulings and expungement of evidence,” she ruled.

The application, filed on January 30, requested that the trial, underway at the High Court be declared a mistrial.

Wairimu’s defence sought to have all rulings and orders made thus far vacated, certain documentary and other evidence expunged from the record, and the trial recommenced before a different judge.

Through her lawyer, she argued that the proceedings had been marred by procedural lapses and alleged constitutional violations that, in her view, rendered the trial unfair and unlawful.

Central to the defence’s claim was the allegation that the prosecution improperly uploaded a substantial portion of the committal bundle onto the court’s digital platform.

Wairimu contended that this action revived documentation not recognised in law and exposed the court to evidentiary material prematurely, potentially affecting the fairness of the trial.

The defence asked the court to expunge certain documents filed by the prosecution, citing procedural concerns.

Wairimu said the application does not seek the presiding judge’s recusal, while emphasising confidence in the judiciary. She, however, expressed reservations on how the proceedings have been conducted.

Ultimately, she requested the court to nullify previous rulings and have the case reassigned to a different judge for a fresh hearing.

The prosecution, however, opposed the application.

The state maintained that the trial had adhered to due process, that the defence’s application largely revisited issues already addressed, and that there was no evidence of bias or improper conduct by the presiding judge.

State Counsel Vincent Monda told the court that the mental assessment report and the order to escort Wairimu to Mbagathi Hospital were carried out lawfully and did not prejudice the defence.

The prosecution also clarified that the court’s digital platform is used to register and track filings alongside the physical service of documents, in line with procedural rules, and does not constitute a violation of legal procedures.

Counsel argued that the defence’s request for a mistrial and reassignment of the case effectively amounted to an attempt to appeal the trial’s conduct before the same court—a request the law does not permit.

In her ruling, Judge Kavedza observed that the application, though not formally framed as a recusal motion, raised questions ordinarily associated with claims of judicial bias or partiality.

The court further emphasised that a trial court cannot sit in judgment over its own past rulings in the manner sought by Wairimu’s application.

While the defence framed the petition as a constitutional challenge, the court ruled that the substance of her request amounted to an appellate reconsideration of decisions already made, which falls outside the High Court’s jurisdiction.

On the issue of alleged bias or impartiality, Judge Kavedza held that there was no demonstrable evidence of judicial misconduct.

The court noted that every judge takes an oath to serve impartially, and unsubstantiated claims do not meet the threshold for recusal.

“Litigants have no right to select the judge who hears their matter. Recusal is a safeguard for fairness, not a tool for tactical manoeuvre,” she said.

With the dismissal of the application, the High Court confirmed that the trial will continue.

The court set May 19 as the date for the hearing to resume, with three prosecution witnesses scheduled to testify.