[2022] KEHC 1211 (KLR)
The court found that the applicants had provided sufficient grounds for the exhumation and reburial of the deceased, namely that the original burial site had been acquired for a public project (Thwake Multipurpose Dam) and that the deceased had purchased alternative land prior to her death. The application was...
Source-derived case information.
- Citation
- [2022] KEHC 1211 (KLR)
- Parties
- Applicant: Juliana Nzilani Kitema; Applicant: Jacinta Katunge Kitema; Applicant: Angelina Kanini Kitema; Applicant: Mary Ndinda Kitema; Respondent: County Government of Makueni; Respondent: Medical Officer of Health Makueni; Respondent: Office of the Attorney General
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E003 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Exhumation and Reburial Application
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Exhumation Orders, Burial Disputes, Public Health Act Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juliana Nzilani Kitema
Applicant
Jacinta Katunge Kitema
Applicant
Angelina Kanini Kitema
Applicant
Mary Ndinda Kitema
Applicant
County Government of Makueni
Respondent
Medical Officer of Health Makueni
Respondent
Office of the Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Exhumation and Reburial Application
Legal Issues
- 1 Whether the court should grant an order for exhumation and reburial of the deceased Kamene Kitema Nyumu.
- 2 Whether the application meets the requirements under section 146 of the Public Health Act.
Ratio Decidendi
The court found that the applicants had provided sufficient grounds for the exhumation and reburial of the deceased, namely that the original burial site had been acquired for a public project (Thwake Multipurpose Dam) and that the deceased had purchased alternative land prior to her death. The application was unopposed, and the respondents had no objection. The court was satisfied that the requirements of section 146 of the Public Health Act were met and that there was no legal impediment to granting the orders sought. Accordingly, the application was allowed, subject to compliance with the statutory provisions governing exhumation.
Court Disposition
application allowed
Orders
- The body of the applicants' deceased mother Kamene Kitema Nyumu shall be exhumed from its place of burial in Ndauni Location, Kathulumbi Division in Mbooni East Sub-County and thereafter re-buried in Kitoto Village Kathulumbi area where the deceased had bought land before she passed on, subject to the provisions of...
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC. MISC. CIVIL. APPLICATION NO. E003 OF 2022
JULIANA NZILANI KITEMA.........................................................1ST APPLICANT
JACINTA KATUNGE KITEMA......................................................2ND APPLICANT
ANGELINA KANINI KITEMA.......................................................3RD APPLICANT
MARY NDINDA KITEMA...............................................................4TH APPLICANT
-VERSUS-
COUNTY GOVERNMENT OF MAKUENI..................................1ST RESPONDENT
MEDICAL OFFICER OF HEALTH MAKUENI.......................2ND RESPONDENT
OFFICE OF THE ATTORNEY GENERAL................................3RD RESPONDENT
RULING
1. Before me is an application dated 17th January 2022 brought by way of Notice of Motion under section 146 of the Public Health Act, Order 51 Rule 1 of the Civil Procedure Rules, and section 1A and 3A of the Civil Procedure Rules, seeking the following orders –
1. That the body of the applicants’ deceased mother Kamene Kitema Nyumu be exhumed from its place of its burial in Ndauni Location, Kathulumbi Division in Mbooni East Sub-County and thereafter re-buried in Kitoto Village Kathulumbi area where the deceased had bought land before she passed on.
2. That the court issues any other relief that it may deem fit and just in this case.
2. The application has grounds on the face of the Notice of Motion that the land where the deceased was buried had now been acquired by the National Government for construction of Thwake Multipurpose dam and it was the wish that the deceased be buried in a place far from the water mass, and that before her death the deceased had been compensated by the National Government and bought land in a different location.
3. The application was filed with a supporting affidavit sworn by Mary Ndinda Kitema one of the applicants on 17th January 2022. The affidavit amplifies the grounds of the application and annexes a number of documents including the death certificate of the deceased Kamene Nyumu.
4. The application and hearing notice was served to the 1st and 2nd respondents on 3/2/2022, but no response was filed.
5. When the application came up for hearing on 30th March 2022, only Mr. Kioko for the applicants appeared in court. None of the respondents appeared in court. Mr. Kioko for the applicants urged the court to allow the application stating that he had spoken to representatives of the 1st and 2nd respondents who had no objection to the application.
6. On my part, having considered the requests of the applicants, and in view of the fact that there is no objection filed, I find no reason to decline the application.
7. I thus allow the application and grant prayer (1) herein subject to the provisions of section 146 of the Public Health Act (cap. 242). I make no order as to costs.
DELIVERED, SIGNED & DATED THIS 4TH DAY OF APRIL, 2022, IN OPEN COURT AT MAKUENI.
............................
GEORGE DULU
JUDGE