https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11117

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CONSTITUTIONAL PETITION NO. E008 OF 2023** **JOHN GATHUNGU NJUGUNA ………………………………PETITIONER** **-VERSUS-** **DIRECTORATE OF CRIMINAL INVESTIGATIONS……RESPONDENT** **CHIEF GOVERNMENT PATHOLOGIST……1ST INTERESTED PARTY** **THE DIRECTOR OF PUBLIC** **PROSECUTIONS………………………….…..2ND INTERESTED PARTY** **KENYA NATIONAL COMMISSION ON** **HUMAN RIGHTS………………………….…..3RD INTERESTED PARTY** **DENNIS GACHIE GITHUI………………..…4TH INTERESTED PARTY** **JUDGEMENT** 1. The Petitioner herein **JOHN GATHUNGU NJUGUNA** filed in this Court a Constitutional Petition dated **16th November 2023** seeking the following reliefs:- **“1. That this honorable court be pleased to issue orders for the chief government pathologist to exhume the remains of one female adult namely Ann Wamuyu Gathungu who died under mysterious circumstances on 8th July 2022 and was buried at 16th July, 2022 at Kanyama village, Ngandu sub-location, Mathira sub-county, Nyeri county for the purpose of a repeated post mortem and extraction of samples for toxicology ascertain the** **cause of death.** **2. That the OCPD and OCS of Karatina Police Station to provide security during exhumation.** **3. That the exhumed body be examined and extraction of specimens for toxicology samples to be done at the grave site or any other place as will be advised by the government pathologist.** **4. That consequently, the Respondent to be compelled to commence a public inquest on the death of the subject deceased.** **5. Such further or other orders as this Honoruable Court may deem fit to grant.** **6. Such other orders as this Honourable court shall deem just”** 2. The Petition was premised upon **Articles 2(1) 3(1), 10 2(a) (b), 25(c) and 23(1) 35 159 (2) (d) of the Constitution of Kenya 2010, Sections 58(1), 302 and 329 (c) 387 (2) of the Criminal and Section 42, 9 and 13 (a) (b) of the Victim Protection Act 2014** and all other enabling provisions of the law. The Petition was supported by the affidavit of even date and the Further Affidavit dated **9th October 2025** both sworn by the Petitioner. 3. The Respondent the **DIRECTORATE OF CRIMINAL INVESTIGATIONS (hereinafter DCI)** responded to the Petition through the Replying Affidavit dated **5th June 2024** sworn by **SERGEANT MOHAMED HASSAN** the investigator assigned to the case. 4. The 4th Interested Party **DENNIS GACHIE GITHU**, filed a Reply to Petition dated **7th July 2025**. 5. The matter was canvassed by way of written submissions. The Petitioner filed the written submissions dated **9th October 2025**, whilst the Respondent did not file any submissions. **BACKGROUND** 6. The Petitioner is a medical practitioner residing and working in the United States of America (USA). He states that he was married to the late **FLORENCE NG’ENO KIUMI** who passed away on **8th July 2022**. 7. The Petitioner avers that the couples only daughter **ANN WAMUYU GATHUNGU** (hereinafter ‘**the Deceased’**) travelled to Kenya sometime in the year 2022 in order to pursue the succession case of her late mothers estate. That on **8th July 2024**, the Deceased and her two (2) daughters travelled to Ihiwago Village in Karatina Nyeri County with her then the boyfriend **Dennis Gachie** (4th Interested Party) to visit his family. That at the time the Deceased and her said boyfriend had differences and the visit to the boyfriend’s family home was an attempt to reconcile. 8. According to the Petitioner (which facts are confirmed by the 4th Interested Party in his Replying Affidavit dated **7th July 2025**) the Deceased whilst feeding her infant daughter began to experience problems breathing. The 4th Interested Party rushed to a nearby clinic to seek help. The medical officer came and examined the Deceased who was then rushed to **Karatina Hospital** where she was declared dead. A copy of the Death Certificate Serial Number **1298685** is annexed to the Petition. 9. Following the demise of the Deceased an autopsy was conducted and the cause of death was stated to be “**Atherosclerotic Corony Artery disease.”** A copy of post mortem report dated **12th July 2022** is also annexed to the Petition. The body of the Deceased was then buried on **16th July 2022** at Kanyama Village, Mathari Sub-County of Nyeri County. 10. The Petitioner states that he is not satisfied with the results of the autopsy as he suspects there was foul play surrounding the death of his daughter. That though the matter was reported to Karatina Police station no action was taken. The Petitioner avers that the Deceased was a young woman, who had no prior health issues. He takes issue with the facts that no toxicology tests were conducted and asserts that the autopsy was therefore incomplete. 11. The Petitioner also complains that the 4th interested party and others have invaded the properties of his late wife and are wasting the same yet it was his daughter (the Deceased) to whom letters of Administration had been issued. That the Petitioners attempts to file this suit at the Karatina Law Courts and the High Court of Nyeri were rejected leaving him with no alternative but to file this constitutional petition. 12. The Petitioner now prays that the court make orders for the exhumation of the body of the Deceased **Ann Wamuyu Gathungu** so that toxicology tests may be conducted on the remains in order to conclusively determine the cause of the Deceased’s death. 13. The Respondent (DCI) in their Replying Affidavit confirm that the demise of the Deceased was reported to police. The deponent **Sergeant Mohamed Hassan** confirms that he was one of the officers assigned to investigate the matter. He states that an autopsy was conducted attended by a **Dr. John Muthuri** representing the Petitioner. The officer confirms that no samples were removed from the body for toxicology tests. 14. The officer states that he did open an inquest file being **Inquest No. 1** **of 2022** but that despite several requests the Petitioner has declined to record a statement with police. The officer states that they have no objection to the exhumation of the body of the Deceased. 15. The 4th Interested Party **Dennis Gachie** in his replying Affidavit confirmed that he was the husband to the Deceased **Ann Wamuyu** **Gathungu**. He confirms that on **8th July 2022** he and Deceased had travelled to the rural home in **Nyeri County**. That whilst there the Deceased began to experience breathing problems and was later pronounced dead. 16. The 4th Interested Party states that it was he who reported the matter to DCI Mathira West. He confirms that an autopsy was conducted by a **Dr. Nderitu** a senior medical officer based in Karatina. That during the said autopsy the petitioner was represented by a Consultant Pathologist **Dr. John Muthuri**. The 4th Interested Party states that he and his two (2) Minor daughters are still processing the loss of their wife mother. He opposes the exhumation of the body on grounds that this will only cause them further trauma, to himself and his two (2) minor children. **ANALYSIS AND DETERMINATION** 17. I have carefully considered the petition before this court, the replies filed thereto as well as the written submissions filed by both parties. The issues which arise for determination are as follows:- **(i) Has the Petition met the threshold for a Constitutional Petition.** **(ii) Has there been any infringement of the Petitioners rights.** 18. The threshold for a constitutional petition was set out in the case of **ANARITA NJERU -VS- REPUBLIC [1997] KLR**, where the Court held that:- **“We would however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed** **and the manner in which they are alleged to be infringed…..”** 19. Similarly in **COMMUNICATIONS COMMISSION OF KENYA & OTHERS -VS- ROYAL MEDIA SERVICES LIMITED & 5 OTHERS [2014] eKLR** the Court stated that **“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154:** **The necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”** 20. The court while considering the elements of a sustainable Constitutional Petition in **Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR** stated as follows:- **“It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complainants…..Although I have in my foregoing discussion adverted to grounds (c) and (d) of the preliminary objection that there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as** **Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil Courts, a party ought to invoke the jurisdiction of the Constitutional Court.” [Own emphasis]** 21. **Rule 4(1)** of the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013 (the Mutunga Rules)** provides as follows:- **“Where any right or fundamental freedom provided for in the constitution is allegedly denied, violated, or infringed, or threatened a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.”** 22. **Rule 10** of the “**Mutunga Rules**” governs the form that a constitutional petition should take **Rule 10(2)** of the said Rules specifically provides as follows: **“(2) The petitioner shall disclose the following -** **a) The petitioner’s name and address;** **b) The facts relied upon;** **c) The constitutional provision violated;** **d) The nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;** **e) Details regarding any civil or criminal case, involving the petitioner or any of the petitioner, which is related to the matters in issue in the petition;** **f) The petition shall be signed by the petitioner or the advocate of** **g) The petitioner; and** **h) The relief sought by the petitioner.”** 23. Guided by the above Rules I find that the Petitioner’s name and full address have been supplied as required. The petition clearly set out a factual background and the alleged contraventions of the constitution were set out in the petition. The petition was duly signed by Counsel and the reliefs being sought were clearly set out. Therefore I am satisfied that the Petition herein does meet the required threshold. 24. The next question to be determined is whether the Petitioner has sufficiently demonstrated an infringement of his constitutional rights. The Petitioner has claimed that his rights under **Articles 20, 24, 25 (c), 35** and **50** of the Constitution have been violated by the actions of the Respondents. **Article 25(c)** relates to the Right to a fair trial whilst **Article 50(c)** touches on the right of every accused person to have adequate time and facilities to prepare his/her defence. **Article** **23** relates to the application of the Bill of Rights whilst **Article 24** deals with Limitations on the Bill of Rights. 25. The Petition despite citing the above articles of the constitution has not demonstrated how the above cited rights stand to be threatened and/or violated if the exhumation is not carried out. 26. **Article 35** of the Constitution deals with the right of every citizen to access to information. The Petitioner is seeking orders to have the body of his late daughter exhumed. He complains that no toxicology tests were conducted during the autopsy therefore the cause of death as opined by the medical practitioners was not conclusive. According to the Petitioner the interment of the Deceased without a toxicology report amounted to an infringement of his right to information under **Article 35** of the Constitution. 27. **Section 146 of the Public Health Act;** which provides as follows; ***“(1) Subject to the provisions of******Section 147, it shall not be lawful to exhume anybody or the remains of anybody******which may have been interred in any authorized cemetery or in any other cemetery, burial ground or other place without a permit granted in manner hereinafter provided.*** *(2)* ***Such permit shall be granted only to the legal personal representative or next of kin of the person buried, or to his or their duly authorized agent****.* ***(3) Such permit may be granted by the Cabinet Secretary in respect of anybody or the remains of anybody interred in any cemetery or burial ground or any other place.*** ***(4) The permitting authority may prescribe such precautions as he may deem fit as the condition of the grant of such permit, and any person who exhumes anybody or the remains fo anybody contrary to this Act, or who neglects to observe the precautions prescribed as the condition of the permit, shall be guilty of an offence and liable to fine not exceeding one thousand*** ***five hundred shillings:*** ***Provided that nothing herein contained shall be deemed to affect the right of a magistrate to order the exhumation of a body or the remains of anybody for the purpose of holding an inquiry into the cause of death of any person*** (own emphasis) The above provision authorises a court to order the exhumation of a dead body in certain specified circumstances. 28. The Petitioner challenges the cause of death as stated in the Post-Mortem Report. In his Supporting affidavit the petitioner avers that the Deceased who resided in the USA attended regular medical checks and had no underlying illness. The Petitioner goes on to give his own opinion as a medical practitioner. 29. The Petitioner has not availed any evidence by way of medical reports to prove that the Deceased attended yearly medical checks and there is no evidence to show that the Deceased had no underlying medical conditions. These are merely assumptions presented by the Petitioner and there was no evidence to back those claims. Though he may be a medical practitioner, the Petitioner was not the doctor attending to the Deceased thus he could not speak authoritatively on her medical history. 30. The Respondent through the investigating officer stated that the Petitioner was fully involved and included in all aspects of their investigation. Both the Respondent and the 4th Interested Party state that the Petitioner nominated a consultant pathologist **John Muthuri** during the autopsy. The Petitioner does not deny that he had nominated a pathologist to represent him during the autopsy. 31. From the record it is evident that during the autopsy there was representation by the DCI, the Petitioner and the 4th Interested Party. All the doctors who attended the exercise agreed on the cause of death. There was no divergent opinion. None of the parties particularly the pathologist representing the Petitioner sought to have toxicology tests conducted. 32. In the circumstances the issues which the petitioner is now raising ought to have been raised and addressed during the autopsy. It is not useful to raise these issues two (2) years after the death of the Deceased. 33. Prayer (4) of the Petition seeks orders to compel the Respondent to commence a Public Inquest to inquire the circumstances leading to the death of the Deceased. There is evidence that following complaints by the Petitioner an Inquest file was opened, being **Inquest No. 1 of 2022**. The Respondent averred that despite several requests made to him the petitioner has adamantly refused to record a statement with the police for use during the inquest. Why would the petitioner shun a legal process instituted by the DCI who are mandated to investigate suspicious deaths and instead file a constitutional petition. In my view the issues being raised in the Petition ought to be raised and determined in the inquest. The doctrine of exhaustion ought to apply. It is not proper to have two suits relating to the same issue running concurrently. The Petitioner should allow the inquest to run its course before filing unnecessary petitions in the High Court. 34. An exhumation order is not an order that should be made casually or merely upon request. African societies greatly respect the resting places of their departed and the Court would be loathe to make such an order save in very extreme cases. The trauma that such an exercise would visit on the minor daughters of the Deceased can also not be discounted. 35. In **Republic V Godfrey Kipkemoi Kangogo (2018) eKLR** the Court held that:- ***“………..There must be a legitimate and compelling reason for the request… A request for exhumation of a body that has been buried to perform a second autopsy is, therefore, an extraordinary relief which should not be allowed in any case unless it is imperatively demanded under the circumstances and is necessary for the due administration of justice. ………It should also not be granted where the evidence sought can be proved or established by other means. Finally, an order for exhumation*** ***should only be granted where it will resolve a demonstrably important or material issue in the case*. [own emphasis]** 36. It is quite obvious that there exists bad blood between the Petitioner and the 4th Interested Party arising from a Succession Cause relating to the estate of the Deceased’s mother. This petition is not the correct forum to settle those differences. The Petitioner should face the matter in that succession cause and avoid side shows. 37. Finally I find no evidence of an infringement or threatened infringement of the Petitioners constitutional rights. In my view this petition was totally unnecessary as there already exists an inquest filed in another court. I therefore dismiss the Petition in its entirety and direct that the petitioner meet the costs. **Dated in Nyeri this 22nd day of July 2026.** **……….………………..** **MAUREEN A. ODERO** **JUDGE**