[2015] KEHC 433 (KLR)
The court held that the application was fundamentally defective because it sought to resolve a contentious matter involving exhumation and re-burial solely on affidavit evidence, without the benefit of oral testimony. Additionally, the failure to join the administrators of the estates of the deceased persons or...
Source-derived case information.
- Citation
- [2015] KEHC 433 (KLR)
- Parties
- Applicant: Veronica Gitiri Nduiga; Respondent: The Attorney General; Respondent: Kenneth Mucuiyia Ngai
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 193 of 2015
- Procedural Posture
- Civil Application / Ruling on Application for Exhumation and Re Burial
- Outcome
- application dismissed
- Legal Topics
- Exhumation Orders, Burial Rights, Joinder of Parties, Affidavit Evidence, Customary Law Considerations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronica Gitiri Nduiga
Applicant
The Attorney General
Respondent
Kenneth Mucuiyia Ngai
Respondent
Procedural Posture
Civil Application / Ruling on Application for Exhumation and Re Burial
Legal Issues
- 1 Whether the application for exhumation and re-burial can be determined solely on affidavit evidence.
- 2 Whether the administrators of the estates of the deceased persons should have been joined as parties to the application.
- 3 Whether the application is fatally defective for failure to join necessary parties and for relying solely on affidavit evidence.
Ratio Decidendi
The court held that the application was fundamentally defective because it sought to resolve a contentious matter involving exhumation and re-burial solely on affidavit evidence, without the benefit of oral testimony. Additionally, the failure to join the administrators of the estates of the deceased persons or other interested parties as respondents was a fatal omission. The court emphasized that such matters require the participation of all necessary parties and a full hearing to resolve the issues justly. As a result, the application was dismissed for procedural defects, with no order as to costs.
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
HC CC. NO. 193 OF 2015
VERONICA GITIRI NDUIGA..................................................................APPLICANT
VERSUS
THE ATTORNEY GENERAL
KENNETH MUCUIYIA NGAI .................................................RESPONDENTS
RULING
The application is brought under sections 3 and 3A of the Civil Procedure Act, section 24 of the Land Registration Act (Act No. 3 of 2012), section 146 of the Public Health Act and all enabling provisions. It is for the exhumation of the following bodies:
Lilian Muthoni Nyaga
Joshua Waweru Nduiga
Ann Wanjiru, all from land parcel No. Ngandori/Kangaru/T.30 and for their re-burial in land parcel No. Gaturi/Weru/712.
The application is supported by a supporting affidavit of the applicant and the attached annexes.
In her supporting affidavit, the applicant has stated that she is the registered owner of the two above named parcels of land. She also stated that the remains of the deceased persons are her daughter in law (Lilian Muthoni Nyaga), her son (Joshua Waweru Nduiga) and daughter in law (Anna Wanjiru). She has further stated that she sold land parcel No. Ngandori/Kangaru/T.90 to the interested party.
According to her, the exhumation of the remains of the three deceased persons and their re-burial on another piece of land is being done in consideration of Aembu traditional customs and practices.
Finally she has stated that it will be in the interests of justice that health officials and the police to be involved in the exhumation process.
I have considered the affidavit evidence of the applicant. I find that the exhumation and re-burial process is not opposed by the respondent (the Hon Attorney General). It is important to point out that the respondent was not served.
I find that this application raises a weighty issue. As a result, it is such that it cannot be resolved on affidavit evidence.
Furthermore, the administrators of the estate of the three persons ought to have been joined as respondents. Finally, this is a matter that ought to be resolved through oral evidence and not through affidavit evidence.
In the circumstances, I find that the application is fundamentally defective in seeking to resolve the matter through affidavit evidence. And secondly, for omitting to join the administrators of the estates of the deceased persons or other interested parties.
In the light of the foregoing, I hereby dismiss this application with no order as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 5th day of NOVEMBER .2015
In the absence of all parties.
Court clerk Nyaga
J.M. BWONWONGA
JUDGE
05. 11. 15