Sarah Wairimu to remain in custody after being denied bail in Cohen murder case

Lady Justice Diana Mochache has denied bail and bond terms to murder suspect Sarah Wairimu Kamotho alias Sarah Cohen to protect the integrity of her trial for the murder of her husband Tob Cohen.

Mochache on Tuesday said the likelihood to intimidate or interfere with the witnesses has been proved with sufficient evidence, adding that the case is of public interest "where a life was lost in the most heinous manner".

The Office of the Director of Public Prosecutions (ODPP) presented the Occurrence Book (OB) records detailing incidents when witnesses were threatened, through Senior Assistant DPP Vincent Monda.

Sarah was charged with the murder of Cohen contrary to section 203 as read with section 204. She is accused of killing Cohen in September 2019 at their home in Lower Kabete, Nairobi.

The ODPP opposed her release until her two former employees listed as witnesses in the case testified because they were at risk of being compromised by the suspect.

Sarah had also made an application to be released on bond with her lawyers insisting there are sufficient legislations providing for witnesses protection.

They also argued that the murder case has been in court for over six years and the suspect has not interfered with the witnesses during the investigations, inquest and later charges in court and there was no evidence to prove that she did not deserve the bail and bond terms.

Justice Mochache said the case requires balancing the accused's rights to liberty and bail against the administration of justice.

"It is my considered view therefore that the principles of justice and public interest outweigh the accused's right to liberty at this stage. The court must safeguard the trial's integrity by protecting witnesses and preventing potential interference," stated the judge.

"In the circumstances, I decline the accused's application for bail. The accused shall remain in custody until after the two witnesses have testified. The accused is at liberty to revisit the issue of bail at that point."

Counsels faulted

Mochache poked holes in factual misrepresentation by Sarah's defense counsel who had alluded that she was no longer a threat to the witnesses since the investigations had been concluded, and the case was already in court.

Justice Mochache faulted the counsels for asserting that the threats against witnesses are necessarily most imminent around the time of the commission of the offence.

The judge said threats to witnesses can occur at any stage in the timeline of the case – prior to, during, or following the act, through investigations, during the trial itself and even post-trial.

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"Given the unpredictable nature of when and from where threats might arise, courts maintain the authority to implement protective measures for witnesses in any stage of the proceedings to ensure their safety and the integrity of the trial process," stated Mochache.

"This capability reflects the judiciary's recognition of the continuous and evolving nature of witness vulnerability. This trial being in its early stage, with no witness testimony yet presented, underscores the ongoing evidence of potential threat."

Mochache said the constitution appreciates that human rights can be limited, in regards to Sarah's rights to bail and bond as an accused person perceived innocent until proven otherwise.

She added the constitution sets criteria for limitation of the rights which is therefore a synonym for "justifiable infringement".

"The infringement will not be unconstitutional if it takes place for a reason that is accepted as a justification for infringing rights in an open democratic society based on human dignity, equality, and freedom. The liberty can therefore be limited when circumstances so demand," stated Mochache.

The case will be mentioned on February 26 for fixing of hearing dates.