Exhumation, commonly known as the act of disturbing a grave without a permit issued by the Cabinet Secretary, is generally prohibited under the Public Health Act.
According to the Public Health Act, it is unlawful to exhume a body or remains from an authorized cemetery or any other burial ground without a formal permit.
“Subject to the provisions of section 147, it shall not be lawful to exhume a body or the remains of a body which may have been interred in any authorized cemetery or in any other cemetery, burial ground or other place without a permit granted in manner hereinafter provided,” the Public Health Act states.
The law specifically limits the eligible applicants who can get access to a permit to exhume a body to the legal personal representative or the next of kin of the deceased, or their authorized agents.
Only legitimate family members or legal agents with a connection to the body may initiate the exhumation process, as provided by the Act.
However, the primary authority to grant the request, when necessary, rests with the Cabinet Secretary, who, under the Act, follows the protocol for issuing the permit.
Any individual who does not get the permit contrary to the Act, or neglects to observe the precautions prescribed as the condition of the permit, shall be guilty of an offence and liable to a fine not exceeding one thousand five hundred shillings.
Exhumation for the Public Interest
In light of public interest for the execution of any public work or any public purpose, the Cabinet Secretary may order the removal of a body from any grave, whether located in an authorized cemetery or elsewhere.
Despite the Law allowing the removal of bodies from graves in areas of public interest, the law states that the family of the deceased is notified and their rights are protected.
For graves in authorized cemeteries, the Act mandates a six-month notice period, published in the Gazette, before an order for removal can be executed.
In addition to the gazette, the law requires that copies of this notice be posted at or near the grave and notifications made to the next of kin directly by sending the notice via registered post to their last known address.
A translation must be provided in the language the family members understand to ensure the family fully understands the proceedings.
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Government Liability and Re-interment
Exhumation for public works initiated by the state under the Kenyan law places the burden of re-interment entirely on the government.
The government is legally obligated to make proper and fitting arrangements for re-interment in an authorized cemetery.
It is also the government’s responsibility to ensure the careful removal and re-erection of any existing monuments or headstones.
All associated charges for the actions are defrayed from public funds, ensuring that families are not financially penalized for public developments as stated under the Act.
“The Government shall make proper and fitting arrangements for the re-interment in an authorized cemetery of a body or remains of a body removed under this section, and for the removal and re-erection of any monument, all charges in connection therewith being defrayed out of the public funds.” Public Health Act dictates.
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The Role of the Judiciary
A magistrate maintains an independent legal right to order an exhumation specifically for the purpose of holding an inquiry into the cause of death in events of suspected foul play or medical mysteries requiring forensic investigation.
The Act ensures that the history of every exhumation is preserved through a mandatory registry system that maintains detailed records of every permit granted and every order for removal issued.
Details included in the registry include the race, nationality, name, sex, and age of the deceased, as well as the date of the original burial and the locations of both the original grave and the place of re-interment.
According to the law, the archive registry remains open for public inspection during office hours, providing a transparent trail of the relocation of human remains in Kenya.
