[2021] KEHC 4932 (KLR)
The court found that the Magistrate's interpretation of Section 146 of the Public Health Act was erroneous. The High Court held that exhumation may be ordered to facilitate an inquiry into the cause of death, as an inquest cannot be properly conducted without a post mortem examination. The order dismissing the...
Source-derived case information.
- Citation
- [2021] KEHC 4932 (KLR)
- Parties
- Appellant: ODPP; Respondent: Principal Magistrate Shanzu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E149 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Revision Application
- Outcome
- appeal allowed; magistrate's order set aside and exhumation granted
- Legal Topics
- Revision of Magistrate Orders, Exhumation Orders, Jurisdiction of Magistrate, Public Health Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ODPP
Appellant
Principal Magistrate Shanzu
Respondent
Procedural Posture
Criminal Appeal / Ruling on Revision Application
Legal Issues
- 1 Whether the Magistrate had jurisdiction to order exhumation in the absence of an inquest.
- 2 Whether the interpretation of Section 146 of the Public Health Act by the Magistrate was correct.
- 3 Whether exhumation is necessary to facilitate an inquest into the cause of death.
Ratio Decidendi
The court found that the Magistrate's interpretation of Section 146 of the Public Health Act was erroneous. The High Court held that exhumation may be ordered to facilitate an inquiry into the cause of death, as an inquest cannot be properly conducted without a post mortem examination. The order dismissing the application for exhumation was therefore set aside and substituted with an order granting exhumation as sought in the Miscellaneous Application before the Magistrate's court. The court emphasized that serving the interests of justice required allowing the exhumation to enable a proper investigation into the circumstances of the child's death.
Court Disposition
appeal allowed; magistrate's order set aside and exhumation granted
Orders
- The order by the trial magistrate is set aside.
- The application for exhumation is granted as sought in the Miscellaneous Application before the Magistrate's court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. E149 OF 2021
ODPP...........................................................................................APPELLANT
VERSUS
PRINCIPAL MAGISTRATE SHANZU....................................RESPONDENT
(Being an appeal against the Ruling passed by Hon. Y. A. Shikanda on 2nd June, 2021 in Shanzu Magistrate’s Court Misc. Case No. E057 of 2021)
RULING
1. By a letter dated 30th June, 2021 the office of Director of Public Prosecutions wrote to the court seeking that Shanzu Court Miscellaneous Criminal application No. E057 of 2021 be placed before this court to revise order made therein dismissing application to exhume the body of MSA 5 years old who died under unclear circumstances and was buried on 16th May, 2021 as per Islamic Customs.
2. The Magistrate at Shanzu Court dismissed the application on the grounds that he didn’t have jurisdiction to order for exhumation where he is not holding an inquest as to the cause of death.
3. I have considered the application for revision of orders made by Hon. Shikanda Principal Magistrate at Shanzu Law Courts on 2nd June, 2021 and find that to serve justice of the day the order by trial magistrate is hereby set aside and substituted with order to exhume the body as applied to in the Miscellaneous Application before the Magistrate’s court. The interpretation of Section 146 of the public Health Act by the Magistrate was erroneous. The applicants have sought for exhumation for purposes of inquiring into the cause of death of the 5 year old child and an inquest can’t be held without a post mortem being carried out to establish such cause of death.
DATED, SIGNED AND DELIVERED IN OPEN COURT /ONLINE THROUGH MS TEAMS, THIS 29TH DAY OF JULY, 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Ogwel – Court assistant
Ms. Karanja for Applicant
Ms. Aroka watching brief for deceased family
HON. LADY JUSTICE A. ONG’INJO
JUDGE