Sarah Wairimu Kamotho has moved to the High Court seeking to nullify her part-heard murder trial, arguing that the proceedings so far are fatally flawed and unconstitutional. 
Wairimu is asking the court to declare the ongoing trial a mistrial and a nullity, and to order that the case starts afresh before a different judge.
She is also seeking the setting aside of all rulings and orders made so far, and the expunging from the court record of all documentary and other material which she says was unlawfully introduced during the proceedings.
In the application, Wairimu argues that the trial has been marred by serious prosecutorial and judicial improprieties, procedural breaches and fundamental defects that have rendered the process unfair and partial.
She says her right to a fair trial has been violated and that allowing the proceedings to continue in their current form would amount to an abuse of the court process.
Wairimu further claims that the prosecution unlawfully uploaded and introduced material through the court’s digital platform and improperly furnished the court with witness statements, photographs and other documents, making the court privy to evidentiary material it was not legally entitled to consider.
She also challenges directions issued on the production of hard-copy documents and inventories at the request of the prosecution, arguing that the move compromised the neutrality of the court.
Wairimu further takes issue with the court’s alleged reliance on an unspecified statement attributed to her in its entirety, and the prosecution’s invitation to the trial court to refer to that statement.
She also attacks a ruling delivered on January 29, 2025, in which she says a report filed in another court was treated as evidence without being marked as an exhibit, without the maker being called and without proper admission under the law.
Wairimu complains that the court ordered plea taking before directing that a medical assessment report be filed, a sequence she says was unprocedural and unfair.
According to the application, the prosecution improperly sought to conduct parts of the trial through affidavit evidence instead of viva voce testimony, while the court allegedly failed to swear witnesses and relied on unsworn evidence.
Wairimu further says the court directed her to give evidence by way of affidavit, exposing her to self-incrimination, and declined to allow proper cross-examination and re-examination of witnesses.
She also challenges what she describes as a casual “mini-trial” conducted instead of a proper trial-within-a-trial, where a prosecution witness was called, followed by the accused, and then another prosecution witness after the accused had already testified.
In a detailed chronology attached to the application, Wairimu lists several instances in which the trial court allegedly issued suo moto directions, including taking judicial notice, calling witnesses, directing her to swear affidavits, asking her to show remorse, calling for a probation report and making remarks suggesting that the scene had been altered and directing that it be cleaned.
She argues that the repeated intervention by the trial court through suo moto orders fundamentally compromised the impartial and adversarial nature of the criminal trial.
Wairimu now wants the High Court to halt the current proceedings, order that the murder case starts afresh before another judge, and place the file before the presiding judge of the Nairobi High Court Criminal Division for further directions.
