In re John Mutuku Kanama & Daniel Wachira Wamuyu (Deceased) (Inquest E002 of 2023) (31 August 2023) (Directions) [2023] KEMC 283 (KLR)

Kwale Law Courts (Magistrates' Court)

31 August 2023

ZKZK Kagenyo

2,062 words in judgment

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The bottom line

A Kwale magistrate declined to hold a court inquest into two men's road deaths, closing the file because the cause of death was already known.

What this practically means

Executive summary

This is a directions ruling in an inquest before the Kwale Law Courts concerning the deaths of John Mutuku Kanama and Daniel Wachira Wamuyu, who died on 31st August 2022 when the motorcycle they were riding collided with motor vehicle KBT 514N at Tiwi shopping centre. The two were suspected of having swindled an M-Pesa agent, Swaleh Abdalla Mwasaria of Christal Ventures Shop, by exchanging phones during a transaction; a mob chase followed the discovery. Nineteen mobile phones were recovered from their belongings. After investigations, the National Police Service recommended closure of the file by way of a public inquest. The magistrate, ZK Kagenyo RM, set out the inquest framework under sections 385 to 388 of the Criminal Procedure Code, holding that section 387(1) discloses two mandatory scenarios (deaths in police or prison custody, and missing persons believed dead) and one discretionary scenario. The court found the circumstances fell within section 386(1)(b) - death killed by another or by an accident - but noted apparent procedural flaws, as there was no documented evidence of information to the court under section 386(2) beyond an unsigned letter, and no correspondence showing how the file was opened. Noting that the cause of the deaths was already documented and known, with the police attributing the deaths to the deceased's own conduct, the magistrate declined to exercise the discretion to hold a court-driven inquiry. The file was marked as closed with directions that it was not to be subjected to further inquiry by the court. No costs order was made.

Key legal issues

Whether the court should hold an inquest into the deaths

Holding

No inquest; the file was closed, the cause of the deaths being already known

Reasoning

The court set out the inquest framework under sections 385–388 of the Criminal Procedure Code. Section 387(1) makes inquiries mandatory for deaths in custody and missing persons, but discretionary in other cases. Here the circumstances of the deaths - a road collision after the deceased were suspected of mobile money fraud - were documented and known, with the National Police Service attributing the deaths to the deceased's own conduct. The magistrate therefore declined to exercise the discretion to hold an inquiry and closed the file.

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Procedural compliance with section 386(2) of the Criminal Procedure Code

Holding

The court noted apparent procedural flaws - no documented evidence of information to the court as required - but proceeded on the assumption the police inquiry file contained the required report

Reasoning

The court observed that apart from an unsigned letter dated 5th September 2022, there was no documented evidence that the National Police Service informed the court of the deaths under section 386(2), and no correspondence showing how the file was opened. Nonetheless, expressing the hope that the duplicate police inquiry file comprised the intended report, the court elected to proceed rather than stall the matter.

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Legal principles established

Section 387(1) of the Criminal Procedure Code elicits three scenarios: inquests are mandatory for deaths in police or prison custody and for missing persons believed dead, and discretionary for deaths by suicide, killing, accident or suspicious circumstances

Court orders

1.The inquest file is marked as closed
2.The file is not to be subjected to further inquiry by the court as to the causes of the deaths of John Mutuku Kanama and Daniel Wachira Wamuyu

Authorities

Legislation

Criminal Procedure Code (Cap. 75)Sections 385, 386, 387, 388
Evidence Act (Cap. 80)Section 118A

Jurisdiction invoked: Sections 385–388 of the Criminal Procedure Code (Cap. 75), in particular sections 386 and 387

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re John Mutuku Kanama & Daniel Wachira Wamuyu (Deceased) (Inquest E002 of 2023)  (31 August 2023) (Directions) [2023] KEMC 283 (KLR)", Case Analysis (2023). Inquest E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/283/eng@2023-08-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.