The High Court in Siaya on Monday declined to grant orders to have the body of the County's first Covid-19 case exhumed for a decent re-burial as sought by his kin.
The family of the late James Oyugi Onyango, a former KPA employee whose body was buried by County officials in the wee hours of April 12 in a shallow grave and without a coffin, went to court seeking orders to have it exhumed and accorded a decent send-off that observes cultural and religious rites.
The petitioners, who included the deceased's sister Joan Akoth Ajuan'g and his son Brian Oyugi, further asked the court to order an autopsy to establish the cause of death.
The two petitioners had also urged the court to consider allowing 15 immediate family members to witness the second burial in their constitutional petition filed before court on April 14.
However, Justice Roseline Aburili said that although the court found that the Siaya County Government had flouted protocols for disposal of Covid-19 patients' bodies as laid out by WHO and Ministry guidelines, she noted that exhuming the body would expose the immediate family and the public to more harm.
She further declined to direct that an autopsy be done as there was no evidence adduced by the petitioners that was contrary to the findings availed by Kemri that confirmed the deceased had succumbed to coronavirus.
Instead, she directed Siaya County to construct and cement the grave within three days of the judgment and meet costs of the petition.
She noted that although public health officers disregarded Ministry protocols in how Mr Oyugi's body was disposed, she found that it was due to their apprehension given the circumstances surrounding his death.
"It was wrong for those who buried the deceased in the dead of the night and without a coffin and denying the family the opportunity to give their loved one a decent send-off," the Judge said.
She further pointed out that "every person has inherent dignity and the right to have that dignity respected and protected by State agencies. The right, I should emphasize, doesn't end when one is dead."
'BETTER SAFE THAN SORRY'
But Justice Aburili noted that given the elaborate guidelines by the WHO on handling of bodies, it would be risky to grant orders sought by the family.
"Exhuming the body and carrying out the autopsy would mean handling the body for even longer hours by the pathologist which would expose those handling the body to more danger," she said, adding that it was better to be safe than sorry.
The judge explained that her verdict was based on precautionary principal that she suggested should be incorporated by the Attorney General, County attorneys and County Assemblies in reviewing protocols in disposal of Covid-19 patient's bodies other than the ones already given by WHO.
"Even though the respondents failed to observe the guidelines on proper disposal of the body in this instance, they have elaborately explained the circumstances that existed then and the Health CS apologised when called upon to do so by the Senate," she said.
"It was indeed unfortunate that James Oyugi Onyango wasn't accorded a decent and dignified burial. However, I am unable to find that the action of the respondents was deliberate or intended to stigmatise the petitioners or disrespect the dead," she said.
She said that in her view, the prevailing circumstances were beyond the capacity of public health officers in Siaya whether through ignorance or otherwise.
The judge also struck out the affidavit in support of the petition filed by the Law Society of Kenya (LSK) through Kisumu advocate Sam Onyango on a technicality.
The LSK was enjoined in the petition alongside Malaika Foundation, a civil society organisation, as an interested party.
The petitioners through their advocate Fred Edward Ambala had listed Simur-Kondiek location Chief Michael Owuor Osodo as the first respondent in the petition with Health CS Mutahi Kagwe as second and the AG as third. County Health Executive Dorothy Owino was listed as the fourth respondent.
The County's advocate, Raymond Olendo, said the judgement was fairly balanced noting that the WHO protocols and that of the Ministry on disposal of bodies of victims were contradicting.
"While the guidelines state that the bodies of Covid-19 victims can't infect those handling them, they also discourage touching of the same," he said, adding that the judgement had explained why the team that interred the body was apprehensive.
For the family, on one hand his kin finds justice in the sense that it was established that the their rights were indeed violated and that the blame squarely falls on the 4th Respondent (the County Health Executive).
However, on the other hand, despite finding that their cultural rights were violated, they were still not allowed to bury their loved one in a dignified manner.
"The judgement will have far reaching effects on the general public and how government -- both national and county -- will conduct themselves in future in case of pandemics or unforeseeable calamities," the family's lawyer told the Nation.
There was uproar over the shocking burial of Mr Oyugi who was laid to rest in a body bag at his Kamalunga village home in Ukwala. The pre-dawn burial was conducted on April 12 under tight security.