U Z (suing on behalf of K M (a minor deceased) v Cabinet Secretary for Health & 3 others [2014] eKLR

Key Facts

Issues

• The court considered the applicant’s request to conduct an independent post-mortem on K M’s body to determine the cause of death, as the father (1st Interested Party) claimed the initial post-mortem already established that the death resulted from a bullet-induced head injury. The Director of Public Prosecution argued for a second examination due to conflicting accounts, highlighting the need to resolve the dispute in the presence of a government pathologist to ensure impartiality and constitutional compliance.
• The court addressed the tension between Duruma customary law, which forbids disturbing a dead body, and the constitutional requirement under Article 159(3) that traditional practices must not contravene the Bill of Rights, be repugnant to justice/morality, or conflict with the Constitution. The key question was whether the applicant’s request for exhumation and a second post-mortem examination, to resolve a dispute over the cause of death, could override the Duruma tradition of not disturbing a deceased body.

Holdings

• The court granted the applicant's orders to exhume the body of K M and conduct an independent post mortem examination, with the Government Pathologist present. The ruling mandates the exhumation to occur on 12th September 2014 and for reports to be filed within 14 days.
• The court determined that Duruma customs opposing exhumation are repugnant to justice and inconsistent with the Constitution if they prevent the search for justice for the deceased child K M. The court emphasized that constitutional rights and the pursuit of justice override customary practices that hinder legal processes.

Remedies

• The court directed the exhumation of the deceased's body to investigate the cause of death, as requested by the applicant. This was granted under Section 387(2) of the Criminal Procedure Code and Article 165(3)(a) of the Constitution.
• Leave was granted to the applicant to conduct an independent post mortem examination on the deceased's body, with the Government Pathologist present, to resolve the dispute over the cause of death. This was deemed necessary by the Director of Public Prosecution.

Legal Principles

• The court applied Article 159(3) of the Constitution to assess whether Duruma customs contravened constitutional rights or justice. It concluded that customs repugnant to the Constitution or bill of rights are invalid.
• Article 165(3)(a) of the Constitution establishes the High Court's unlimited original jurisdiction in criminal and civil matters, affirming its authority to handle exhumation orders and post mortem examinations.

Cited Statute

• Constitution of Kenya
• Criminal Procedure Code

Judge Name

Passage Text

• The main issue in this matter is what is the justice in this case. The simple answer is that the cause of death of the little girl called K. If Duruma customary law is an impediment towards the search for justice for the Deceased, then it is repugnant to justice and its inconsistent with the Constitution to that extent and therefore null and void.
• Article 159(3) of the Constitution provides that traditional dispute resolution mechanisms shall not be used in a way that (a) Contravenes the bill of rights; (b) Is repugnant to justice and morality; or (c) is inconsistent with this Constitution.
• This Court does find merit with orders sought for exhumation of the body of K and the conducting of a second post mortem examination.