Inquests are inquiries into sudden death as well as where a person has gone missing and is believed to be dead.

Section 385 of CPC provides that a magistrate of first and second class or one specially empowered by the Chief Justice shall be empowered to hold inquests.

Section 386 provides that a police officer in charge of a police station or any other police officer specially empowered by the Minister in that behalf on receiving information that a person has
(a)  person has committed suicide;
(b)  Been killed by another or by an accident; or
(c)   Has died under circumstances raising a reasonable suspicion that some other person has committed an offence;
(d)  Is missing or believed to be dead;

Shall give such information immediately to the nearest magistrate empowered to hold inquests.  They are additionally required unless otherwise directed by any rule made by the Minister, to proceed to the place where the body is and

They are expected to investigate and then draw up a report on the apparent cause of death describing such wounds  fractures, bruises and other marks of injury as may be found on the body and stating in what manner or by what weapon or instruments (if any) the marks appear to have been inflicted.  This is based on the opinion of the person visiting the scene.

That report is made based on the evidence compiled by officers specially trained on scenes of crime and forensic issues.

Where the police officers are not able to establish the course of death at the scene Section 386(2) of the CPC provides that where he considers it expedient the police officer shall, subject to any rule made by the Minister forward the body, to a  medical officer for examination, ensuring that transportation of the body shall not render examination useless.  The manner in which the body is transported may interfere with the evidence and thus importance to preserve body as it is.

The pathologists are required to make a report on the cause of death based on the evidence that they find.  They will perform a post-mortem.  The report is then forwarded to the magistrate, empowered to hold an inquest.

In the case of a person who is missing and believed to be dead, the report is to be sent to the AG through the Commissioner of Police detailing all supporting evidence and the grounds upon which the death of that person is presumed to have taken place – this report must of necessity  take into account the duration for presumption of death i.e. 7 years duration where the person has not been seen or heard of by family friends etc.

Where there are fatal tragedies i.e. the Mtongwe Ferry, the KQ, duration may be shortened since the cause of death is known and it is only bodies that have not been traced.  We use the same process

Subsection 3 obligates any person who finds or is aware of a body of a body of a person believed to have committed suicide or has been killed by another or by accident to make a report immediately to the nearest administrative or police officer.

Section 387 makes special provisions where a person dies in the custody of the police or a prison officer, or in prison, in such cases a magistrate empowered to hold an inquest may hold an inquiry into the cause of death either instead of or in addition to the investigations held by the police or prison officer.  The process of finding out the cause of death must be transparent and hence the need for an inquest.

While conducting inquests magistrates have powers to examine a body that has already been interred; or to cause a body to be disinterred and examined.  Where family are concerned that evidence has come out that is circumstantial and they need to know with certainty the cause of death.

Inquests commenced by way of police placing files before the court with all the evidence available to them the files are then perused by a magistrate to determine whether or not an inquest should be held and invariably inquests are recommended.  Where the cause of death is known and is clear from the files and the persons who committed the violence are known there is no point in holding an inquest. 

The case is then set down for hearing and at the hearing the prosecution will usually lead the evidence.  In Kenya we do not have the coroner system and so inquests are not conducted by a coroner.  One of he weaknesses of having prosecutors is that they prosecute cases on a daily basis and they may make the inquiry a mundane process.

At the hearing the prosecution will indicate all the witnesses that they have, and these witnesses may include suspects – the reason being that an inquest is similar to an inquiry and therefore at this stage the prosecution may not have gathered sufficient evidence to warrant the prosecution of a specific individual.  The practice is for the family of the deceased to hire advocates who work closely with the prosecution but have the right to cross examine witnesses persons also allowed legal representation  who may be adversely mentioned are allowed legal representation with a right to cross examination.

Since the aim of an inquest is to try and establish the truth as well as seeking information; there is more latitude given to the prosecution in leading the witnesses, a lot of hearsay for example may be adduced and allowed.  For this reason; witnesses and new evidence that may not have been available prior to the commencement of the inquest may be called as the inquest progresses.  In an inquest as the case proceeds, more and more evidence is adduced and investigations continue because at the initial stage one may not have all the witnesses having been interviewed and anybody adversely mentioned would like to interrogate the issues that arise.

Since the aim of an inquest is to try and establish the truth as well as seeking information; there is more latitude to the prosecution in leading the witnesses.  For this reason; witnesses and new evidence that may have been available prior to the commencement of the inquest may be called as the inquest progresses.  

Section 387(3) provides that where before or at the termination…

Where the person attends court and the inquest has already commenced, then the magistrate shall commence do novo by way of trial – if in the middle of the inquest the magistrate decides the offence has been committed by a known person, the person will be arrested and there will be a new trial.  It may not mean that the person has committed murder, it could be even a traffic offence so the circumstances and evidence will direct the magistrate as to what is the best offence to be preferred against the person.

Where the inquest has not commenced i.e. where the magistrate forms such an opinion at the stage of perusing the police file then they will not proceed with inquest but institute the process of such persons standing for trial.  Where the magistrate forms the opinion that an offence has been committed by some unknown person he shall record his opinion and send a copy of the opinion to the AG.

Where the magistrate forms the opinion that death has occurred but no offence has been omitted or that it has occurred through misadventure, then the magistrate shall record such an opinion accordingly.

With regard to inquiries relating to missing persons believed to be dead, the magistrate at the termination shall report the case together with his findings to the attorney general, including recommendations whether or not the person regarding presumption of death under Section 118A of the Evidence Act should; be reduced and if so by what period.  The 7 years should be substituted; considering the circumstances of the specific case.

Thereafter the AG after considering the opinion from the magistrates shall refer the matter back with a direction on the period of substitution and that an order be made by the magistrate accordingly in the court file; and upon expiration of such substituted period the Registrar General shall be empowered upon production of such order by the officer entitled to apply for and receive a grant of representation under the Law of Succession Act to issue such person with an appropriate certificate of death in accordance with the Births and Death Registration Act.

Under Section 388(1) CPC the AG has powers to direct a magistrate to hold an inquest in accordance with section 387 of the CPC.

Section 388(2) – CPC provides that where a magistrate terminates an inquest under Section 387; the Attorney General where he considers that there is need for further investigations may direct the magistrate to reopen the inquiry and further investigations are then began, in which case the magistrate shall have full powers to reopen the inquiry and make further investigations and proce4ed in same manner as if the inquiry had not been terminated.  For example in Julie Ward the case was re-opened and people charged, another inquest still went on. As long as the truth has not been established one can continue to investigate.

The Attorney General may also direct whether there is need for the body to be disinterred and examined.  These provisions do not apply where the magistrate has made a finding hat a person has committed the offences of murder or manslaughter.


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