The family of former Kenya Ports Authority employee, James Oyugi, who died of Covid-19 have lost a bid to exhume his body to give him a decent burial as they had envisioned.
High Court sitting in Siaya dismissed their request to have the body exhumed, to allow for a biopsy and autopsy before a decent burial is conducted.
The burial of the late Oyugi sparked outrage among family, residents and members of the public after he was hurriedly buried at dawn in a bizarre ceremony that left villagers in shock.
The body was wrapped in a body bag and buried at his home in Kamalungi village, Ukwala in Ugenya Sub-county at 2am under the watchful eyes of police and public health officers.
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The unusual burial prompted the family to go to court seeking to be allowed to exhume the body and the cause of death determined, before conducting a decent burial.
The family had told the court that the Ministry of Health and the County Government officials had not given them a health certificate proving Oyugi had been diagnosed with Covid-19.
The family had listed the Health Cabinet Secretary Mutahi Kagwe, Siaya Health CEC Dorothy Owino, Attorney General and Ukwala Location chief in the suit.
But yesterday Judge Roseline Aburili ruled that in the interest of public health or public good, there would be no exhumation of the body, a biopsy and autopsy.
Judge Aburili concluded that the state organ which was responsible for the interment of the deceased has confirmed that he died of Covid-19.
She noted that the only thing the court could do was to ensure that a death certificate be issued to the family to assist the relatives of the deceased undertake alteration proceedings.
"This is so because of the risk or harm involved in exhuming the body to determine the cause of death and burying him in a coffin is not trivial and neither are the family members certain there would be such harm," explained Judge Aburili.
She further noted that this was a perfect case where precautionary principles should be applied in the interest of public health to protect the public good.
"I further find out that the formality of carrying out an autopsy in the presence of the family or their nominees will expose them to Covid-19 infection even if they are provided with personal protective gears. This, in my view also diverse the use of protective gears by medical service providers who need them most," she added.
The judge further argued that despite praying for an autopsy there was no evidence of irregularity demonstrated in the sampling and testing of the deceased for Covid-19 prior to the demise.
Cement the grave
In her ruling, the judge directed the County Government through the health department to proceed to the late Oyugi’s grave within three days of date judgement and at their own cost while at the same time observing all Ministry of Health guidelines cement the grave with high quality materials to protect it from being wiped away by winds or possible digging by wild animals.
Judge Aburili further directed that in all its future endeavours the state must comply with public health guidelines for the management of bodies and patients suspected to have succumbed from highly infectious diseases such as Covid-19.