The Kibera High Court has rejected an application by Sarah Wairimu to terminate her ongoing murder trial, firmly dismissing her request to have the proceedings declared a mistrial. Wairimu, who faces charges related to the death of Dutch businessman Tob Cohen, sought to invalidate the current legal process and restart the case from scratch.
In a ruling delivered on Thursday, Justice Diana Kavedza determined that the court lacks the legal authority to grant the specific orders Wairimu requested.
“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,” Justice Kavedza ruled.
The Defence’s Argument for a Fresh Start
Wairimu filed the application on January 30, pushing for a total reset of the high-profile case. Her legal team aimed to overturn all prior rulings, remove specific documentary evidence from the record, and move the trial to a different judge.
Her lawyer argued that procedural missteps and alleged constitutional breaches compromised the trial’s integrity. Central to the defense’s claim was the prosecution’s use of the court’s digital platform. Wairimu maintained that the state improperly uploaded a significant “committal bundle,” which she argued reintroduced unrecognized documents and exposed the court to evidence prematurely, potentially prejudicing the case.
Despite these claims, Wairimu noted she was not seeking the judge’s recusal due to a lack of faith in the individual but rather due to concerns over how the proceedings unfolded.
The Prosecution Stands Firm
The state strongly opposed the application, asserting that the trial has followed due process at every turn. Prosecutors argued that the defense was simply trying to relitigate matters the court had already decided.
State Counsel Vincent Monda clarified that the mental assessment report and the order to escort Wairimu to Mbagathi Hospital were executed lawfully. Furthermore, the prosecution defended the use of the digital platform, explaining it serves as a legitimate tool for tracking filings alongside physical documents.
The state maintained that asking the same court to declare its own conduct a mistrial is a legal approach the law does not recognize.
A Question of Jurisdiction and Bias
Justice Kavedza noted that while the application didn’t formally ask her to step down, it raised issues typically associated with judicial bias. However, she found no evidence to support such claims. She clarified that a trial court cannot simply review and overturn its own previous rulings in the manner Wairimu proposed.
The court viewed the petition as an attempt at an “appellate-style review,” something that belongs in a higher court, not the one currently hearing the evidence.
“Litigants have no right to select the judge who hears their matter. Recusal is a safeguard for fairness, not a tool for tactical manoeuvre,” Justice Kavedza remarked, noting that every judge takes an oath to remain impartial.
With the dismissal of this application, the Tob Cohen murder trial will proceed as scheduled. The High Court has set May 19 as the date for the hearing to resume. The public can expect a significant update then, as three prosecution witnesses are slated to take the stand to give their testimony.
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