The High Court has suspended the hearing of a case in which the family of a senior police officer has accused a former chief government pathologist of stealing their dead kin’s heart.
Justice James Makau halted the proceedings yesterday until the court rules on a petition by Lee Funeral Home seeking to be excluded from the dispute that pits the family of the late Nairobi provincial police chief Timothy Mwandi Muumbo against Dr Moses Njue.
Former Government Chief Pathologist Moses Njue at a Nairobi court on May 15, 2018.
Photo credit: Evans Habil | Nation Media Group
A witness, Prof Emily Rogena, who was to testify on behalf of the family, was barred from giving her evidence due to the morgue’s petition.
Lee wants the court to strike out the family’s case entirely, arguing that it does not raise any constitutional issues, or exclude it from the dispute as no issues are raised against it that require its response or participation.
Through lawyer Herman Omiti, Lee argues that no allegations have been made against it by the family of the deceased, whose heart was allegedly extracted and went missing at the morgue during an autopsy in June 2015.
Mr Omiti says excluding Lee from the case will save the funeral home from incurring unnecessary costs.
The lawyer also says the family’s constitutional petition offends the law as the petitioners have not specified which rights or fundamental freedoms of each have been violated, infringed or denied.
The petitioners are Jostone Kassim Muumbo, Alex Munyasia and Carolyn Muumbo. The respondents are Dr Njue, Dr Peter Ndegwa, Lee Funeral Home, Billy Mbuvi Muumbo, Mwinzi Muumbo, the Inspector-General of Police and the Attorney-General.
Mr Omiti explains that the issues raised in the petition are civil disputes and do not involve Lee Funeral Home, as the petitioners have not disclosed the violation of rights attributed to the morgue. He says his client has not been faulted for anything.
However, the family had earlier told court that the morgue was dragged into the case because the deceased’s heart was lost when the body was in their custody.
In the court papers, the family, led by Jostone Kassim Muumbo, wants the court to compel the pathologist and the morgue to release the lost body part.
Carolyn Muumbo, in earlier proceedings, testified that there was collusion to conceal the truth about her father’s cause of death. He was aged 83.
Ms Muumbo, also a lawyer, told the court her father collapsed and died on June 22, 2015 at his home in Kileleshwa. The body was taken to Lee Funeral Home for preservation.
Two days later, a postmortem exam was conducted. The family was told that he had died of a heart attack.
They had asked Dr Njue to carry out the postmortem with the agreement he would provide the results in two weeks.
Dr Njue missed the deadline and they served him with a demand letter. They later learnt that the report Dr Njue had submitted was similar to one filed by the police and another prepared by a doctor hired by the family.
The family ordered a second postmortem, this time by Prof Rogena. She did not conduct the exam, because it was discovered that vital organs, including the heart, were missing.
This prompted the family to seek redress in court redress, seeking orders compelling the pathologist to produce the organs.
A court document shows that Dr Njue told the family that the elderly’s man’s kidney and parts of his stomach were taken to police and that he could not account for the heart.
Dr Njue and his son, Lemuel Anasha Mureithi, were later charged in a magistrate court with stealing the man’s heart. They were released on cash bail of Sh300,000 each.
