Sarah Wairimu Kamotho Cohen v Republic
The bottom line
#The Court of Appeal refused Sarah Cohen bail during her murder trial but ordered her appeal against the bail denial heard on priority.
What this practically means
#Executive summary
#Key legal issues
#Applicability of rule 5(2)(a) of the Court of Appeal Rules to an appeal against refusal of bail
The rule does not strictly apply; it is designed for convicted and sentenced appellants, whereas the applicant's trial is ongoing and the impugned order is a negative order incapable of execution.
A plain reading of rule 5(2)(a) shows it permits interim relief of release on bail or suspension of a warrant of distress pending determination of an appeal. It is commonly invoked where an appellant has been convicted and sentenced. Here the applicant has not been sentenced; her appeal is against refusal of bail, a negative order incapable of execution, so the rule's machinery is unavailable and the Jivraj Shah principles do not strictly apply.
Scope of appellate interference with a trial judge's discretion to deny bail
The applicant must show the trial court exercised its discretion injudiciously or perversely; the interlocutory bench cannot re-examine whether the trial court had a basis to deny bail.
Bail is a right of an accused person but not absolute; it may be denied on compelling reasons under Article 49(1)(h). An accused appealing denial of bail must persuade the court that the trial judge's discretion was injudicious or perverse within settled principles for interfering with discretionary decisions. A detailed enquiry into the merits of the denial belongs to the bench hearing the appeal, not the interlocutory bench.
Whether the Court could set aside the High Court ruling and grant bail at the interlocutory stage
Both prayers were misconceived because granting them would determine the appeal before it is heard; only the prayer for expedition was granted.
Prayer (2) sought to set aside the ruling of 8th July 2025, which would amount to granting the appeal before hearing. Prayer (3) sought bail pending the application and appeal, which would determine the bail question in advance. The Court found the applicant aware of the improbability of those prayers, hence the alternative prayer for expedition, which was granted as there was no reason to delay the appeal.
Legal principles established
#- Rule 5(2)(a) of the Court of Appeal Rules does not apply to an appeal against a refusal of bail in an ongoing trial, because there is no sentence to suspend and a refusal of bail is a negative order incapable of execution.
- The Jivraj Shah principles for bail pending appeal do not strictly apply to an appeal against a refusal of bail by the trial court.
- On an appeal against denial of bail, the applicant must persuade the court that the trial judge exercised discretion injudiciously or perversely; the appellate bench should not conduct a detailed enquiry into whether the trial court had a basis to deny bail.
Court orders
#- 1.Dismissal of the prayer to set aside the ruling delivered on 8th July 2025 by Kavedza, J.
- 2.Dismissal of the prayer for the applicant's admission to bail pending the hearing and determination of the appeal
- 3.Direction that the appeal be processed and heard on an expedited basis
- On appeal from
- High Court of Kenya at Kibera
- Kibera HCCR No. E001 of 2025 (Republic v Sarah Wairimu Kamotho Cohen)
- Jurisdiction invoked
- Rule 5(2)(a) of the Court of Appeal Rules; sections 123 & 124 of the Criminal Procedure Code; Articles 20(3) & (4), 21(1), 22(3) & (4), 29(a), 49(1)(h) & 50(2)(a) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sarah Wairimu Kamotho Cohen v Republic", Case Analysis (2026). Criminal Application (Nairobi) - motion dated 28th July 2025 arising from intended appeal against Kibera HCCR No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1647/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.