[2019] KEHC 11890 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO.237 OF 2017

(In the matter of an application for an order for the release of Stephen Nthuku Kimatu’s alleged body for burial)

STERAMALIS STEPHEN NTHUKU..................................1ST APPLICANT

ALEX KALUA NTHUKU….................................................2NDAPPLICANT

VERSUS

MBISU KING’ELE............................................................1ST RESPONDENT

OFFICE OF THE DPP.....................................................2ND RESPONDENT

INSPECTOR GENERAL OF POLICE..........................3RD RESPONDENT

OFFICE OF THE DIRECTOR OF CID........................4TH RESPONDENT

MACHAKOS COUNTY CID OFFICER.......................5TH RESPONDENT

RULING

This is a protracted burial dispute that has resulted in the body of a deceased being kept at the City Mortuary since the year 2004. The dispute is between the 1st Respondent Mbisu King’ele who is the sister of Stephen Nthuku Kimatu who is claimed to be the deceased and whose body is at the City Mortuary and the Applicants, Steramalis Stephen Nthuku and Alex Kalua Nthuku who are wife and son respectively of the said Stephen Nthuku Kimatu. They disputed that the body which has been at the City Mortuary belongs to Stephen Nthuku Kimatu. To resolve this issue, this court, by consent of the parties, ordered for DNA samples to be taken from the 2nd Applicant, the son and from the 1st Respondent, the sister of Stephen Nthuku Kimatu. These DNA samples were to be compared with biological samples extracted from the body at the City Mortuary which is claimed by the 1st Respondent to belong to Stephen Nthuku Kimatu. The parties complied with the orders issued by this court.

In a report submitted to the court dated 12th April 2019, the Government Analyst found that the biological samples extracted from the body could not generate DNA profiles that would enable the body to be identified. In the circumstances therefore, it was impossible to determine whether the body belonged to Stephen Nthuku Kimatu. That would have been the end of the matter. However, the 1st Respondent still insisted that the court hears her application so that the body can be released to her and be buried in Stephen Nthuku Kimatu’s ancestral home in Kithyoko in Machakos County.

In her submission before court, the 1st Respondent stated that notwithstanding the finding made in regard to DNA, the 1st Respondent was of the view that the DNA result was not conclusive. She still insists that the body at the City Mortuary belonged to Stephen Nthuku Kimatu taking into consideration the place where the body was found at Yatta Forest. The 1st Respondent insisted that the body of the deceased should be buried in Stephen Nthuku’s ancestral home as required under Kamba customary law. She reiterated that if the body was not that of Stephen Nthuku Kimatu, then where is Stephen Nthuku Kimatu? Is he still alive or is he dead?She insisted that the Applicants were denying the identity of the body at the City Mortuary as belonging to Stephen Nthuku Kimatu because there was bad blood between Stephen Nthuku Kimatu and his wife prior to his disappearance and death. She therefore urged the court to allow the body at the City Mortuary be released to her and the same be buried at his ancestral home at Kithyoko.

The application is opposed. The Applicants were vehement in their objection to having the body of the deceased buried at Kithyoko. They insisted that since the body of the deceased has not been established to belong to Stephen Nthuku Kimatu, they were not prepared to bury a stranger in their land. They were not opposed to the body of the deceased being released to the 1st Respondent provided that the same was buried elsewhere other than in their parcel of land at Kithyoko. They urged this court to disallow the 1st Respondent’s request to bury the body of the deceased on the particular parcel of land.

This court has considered the rival submission made by the parties to this application. It was clear to the court that the matter in dispute is no longer who should the body now lying at the City Mortuary should be released to, but rather where the body should be buried. There was dispute between the affected parties regarding the identity of the body of the deceased. This court with a view to resolving the issue of the identity of the body, directed that a DNA analysis be done with a view to determine whether the body belong to Stephen Nthuku Kimatu. The son of Stephen Nthuku Kimatu and his sister gave DNA samples. The DNA analysis would have resolved once and for all whether the deceased was related to either of them. Unfortunately, the samples from the body of the deceased could not generate material that would have enabled the DNA analysis to be done. The report was inconclusive as regard whether the body now lying at the City Mortuary belonged to Stephen Nthuku Kimatu. That being the case, this court cannot determine with certainty that the body now lying at the City Mortuary is that of Stephen Nthuku Kimatu. In the circumstances therefore, this court cannot accept the invitation made by the 1st Respondent for it to declare that the body at the City Mortuary belongs to Stephen Nthuku Kimatu. That being the case, the 1st Respondent cannot insist that the body be buried at Kithyoko, the parcel of land of Stephen Nthuku Kimatu.

In the premises therefore, the orders that commends itself to this court is as follows:

i. The 1st Respondent is at liberty to collect the body now lying at City Mortuary for burial.

ii. The 1st Respondent shall bury the body at a place of her choice other than the parcel of land belonging to Stephen Nthuku Kimatu at Kithyoko in Machakos County.

iii. Any expenses that shall arise or has accrued in respect of the body now lying at City Mortuary shall be paid by the 1st Respondent.

iv. Should any party be aggrieved by this Ruling, this court grants leave for the aggrieved party to appeal.

It is so ordered.

DATED AT NAIROBI THIS 24TH DAY OF SEPTEMBER 2019

L. KIMARU

JUDGE