By Ian Njathi
(LL.B., LLM, Dip in Law)
1. Once a body has been buried, it is under the Custody the Law.
2. The law on exhumation of bodies or remains of bodies is provided for under the Public Health Act(Cap 242) section 146 which provides that it is unlawful to exhume any body or remains of any body interred in any authorized cemetery or burial ground without a permit.
3. The permit is granted only to the legal personal representative or next of kin or their duly authorized agent by the Cabinet Secretary in charge of health.
4. The permitting authority will then prescribe precautions/conditions which he deems fit and must be adhered to in order to grant the permit. Any person who exhumes any body or remains or fails to observe the precautions prescribed as conditions for the permit is guilty of an offence and is liable to a fine not exceeding Kshs. 1,500.
5. The Public Health Act also envisions a scenario where a Cabinet Secretary in the exercise of his power may order for the exhumation of bodies or remains of bodies from any grave in a manner that he thinks is fit for the execution of any public work or for a public purpose such as improving infrastructure such as building roads.
6. However, where the body or remains are interred in an authorized cemetery, the order cannot be made until six months’ notice is given by notification in the Gazette and copies of such notices are posted at or near the grave and copies sent by post in a registered letter to the legal personal representative or next of kin of the buried person.
7. Where the order is given to exhume a body or remains interred in a place other than an authorized cemetery, due notice shall be given in so far as is possible to the legal representatives or next of kin of the buried person.
8. In the scenario where the minister has ordered for the exhumation of a body or their remains for the purpose of executing public works, the government is responsible for making proper and fitting arrangements for the re-interment in an authorized cemetery of any body or remains. The government is also responsible for the removal and re-erection of any monument and all charges being paid out of the public funds.
9. Another way a body can be exhumed is when a magistrate orders the exhumation of bodies or human remains for the purpose of conducting an inquest as to the cause of death as under section 388 of the Criminal Procedure Code.
10. In order to seek a permit to exhume a body for the purpose of reburial in another grave or for any other lawful reason such as cremation, an application to exhume the body must be made to the permitting authority, the application must be accompanied by the original burial permit and death certificate of the deceased as well as a re-burial permit to reinter the body.