Courts
Judge rejects LSK application for DNA tests on bodies lying at City Mortuary
Muthoni was among the seven youths who were abducted in Nairobi while Kavingo was among the Mlolongo abductees
The High Court has declined an application by the Law Society of Kenya seeking the issuance of orders directing the Government Chemist to conduct DNA tests on 14 unknown bodies at the Nairobi Funeral Home to ascertain the identities.
In rejecting the application, Justice Bahati Mwamuye stated that the application cannot be accommodated at this stage since the parties agreed to proceed with the hearing as directed by the court.
Justice Mwamuye added that admitting the application will bring confusion by introducing other parties which will force the court to set other timelines on determining the matter.
“The Government Chemist will be notified since they are not served with the letter and respond to it then give their timeline of conclusion. This will affect the whole proceedings changing the dates for hearing and ruling,” Justice Mwamuye stated.
LSK, through its letter dated 14th February 2025, which was brought before the court by Senior Counsel Martha Karua sought to have the court issue orders to the Government Chemist to conduct the DNA analysis on the bodies to establish whether they match those of the relatives of the missing Steve Kavingo and Kelvin Muthoni.
In their application on December 26, 2024, the relatives had filed a harbeous corpus application seeking to have youths abducted by people believed in court produced alive or dead before the court.
The court granted the application by directing that Inspector General of Police Douglas Kanja and Director of Criminal Investigations Mohammed Amin to personally appear in court to explain what they know about the abductees.
While the police chiefs denied any involvement, five of those abducted have since been released, two found dead while the whereabouts of Kavingo and Muthoni remain a mystery.
The LSK had argued that the DNA tests will assist the court in determining whether the duo are dead or alive.
Part of the letter read: “We are writing to you demanding DNA/forensic analysis biology undertaken on February 4, 2025, by government pathologist Dr Richard Njoroge be expedited as we wish to ascertain the identities of the 14 unknowns in Nairobi.”
Muthoni was among the seven youths who were abducted in Nairobi while Kavingo was among the Mlolongo abductees.
In the letter, the LSK noted that on January 30, 2025, they learnt that Justus Mutumwa and Martin Mwau, two of the Mlolongo abductees, were found dead at Nairobi Funeral Home (City Mortuary).
“On February 5, 2025, Dr Njoroge, a government pathologist conducted post mortem on the said persons and went further to collect DNA forensic biology samples from other various unknowns.”
It informed the court that the petitions are still live in court and court orders of hatbeous corpus are alive up to date. They told the court they wrote to the director of government chemist demanding for the DNA samples collected by Dr Njoroge to be used to ascertain the identities of the unknown persons.
“It is our humble request you expedite and perform DNA/ forensic biology tests following the bucal swabs and further DNA analysis on (bones and nails) on the unknown samples conducted by Richard Njoroge on February 5, 2025.” The letter read.
The application was opposed by Kanja and Amin, through their lawyer Paul Nyamondi, stating that the applicants are abusing the court’s proceedings by introducing the inter-parte hearing which can only lead to the adjournment of the proceedings,
“Your honour the applicants cannot introduce applications everytime the court set to hear the filed applications. Their prayer admits the inter-parte hearing since the parties they are involving need to be heard on their side,” Nyamondi said.
He told the court that the DNA test is scientific and can be encountered with many technical problems and the director of government chemist cannot be ambushed with an order they have not given him time to respond to.
Nyamondi insisted that no further orders beyond habeous corpus defined in the law which the applicants are requested. He added that the IG and the DCI made it clear that the respondents are not in any of their custodies.
He prayed the court to reject their application.
In giving directions regarding the prayers by LSK, Mwamuye directed to they continue with the hearing of the application as the court had directed earlier.
“Admitting the prayers by LSK will lead to further delay in the hearing of the matter and add the confusion on the proceedings. I hereby declare to proceed with the hearing,” he said.
Nyamondi had also submitted that the applicants have failed to supply the details of Kelvin Muthoni and the police cannot conduct investigations without basic details, noting that Kanja and Amin appeared before the court and confirmed that the missing persons are not in the hands of police not in any of their custodies.
“Your honour the respondents were not supplied with details regarding the eighth respondent hence limiting the respondents to conduct Investigations about him,” he submitted.
In response, lawyer Ndegwa Njiru noted that by LSK are part of details to assist the court with information despite the stage where the matter has reached since the applicant is yet to be found.
The ruling on the matter will be delivered on March 21.
