The Petitioner herein brought the petition herein dated 4th November 2024 seeking that this court makes:-
(i) A declaration does issue that the 1 st Respondent cannot register a death of any person as a late registration or otherwise in the absence of a burial permit or a medical certificate or a certified death report issued by a magistrate or police officer under sections 19, 20 and 21 of the Births and Deaths Registration Act.
(j) A declaration does issue that the 1st tRespondent has no power to issue a written authority for the registration of a death after six months from the date of such death under section 8 of the Births and Deaths Registration Act and that such power is solely vested in the principal registrar.
(k) A declaration does issue that the registration of the death of Ondiek Ogwang National Identity Card No. 6691664 under certificate of death entry no. 12423000277 dated 19.5.2023 is unconstitutional, illegal, null and void.
(l) A judicial review order of certiorari does issue to bring into this Court and quash certificate of death entry no. 12423000277 dated 19.5.2023 for Ondiek Ogwang and that the same be expunged and omitted from the records of the I st Respondent.
(m) A judicial review order of mandamus compelling the competent magistrate at the Rongo Law Courts and the police, officer commanding•station at Kamagambo Police Station, Rongo to undertake an inquiry and to hold an inquest as to the cause, date and place of death of Ondiek Ogwang and make appropriate report and recommendations under the relevant provisions of the Births and Deaths Registration Act and the Criminal Procedure Code.
(n) An order of injunction does issue directed at the I st & 2nd Respondents and anyone acting under them from using, issuing any copies or certified copies or in any manner or way using certificate of death entry no. 12423000277 dated 19.5.2023.
(o) Such other or further orders as this Court may deem just to grant.
(p) Costs.
Brief facts of the petition are that on or about 27th November 2012 the 2nd Respondent sold to one Charles Ondiek Ogada L.R. No. Kamagambo/Kanyimach/1302 which was a subdivision of L.R. No. Kamagambo/Kanyimach/1258 which was then registered in the name of the 2 nd Respondent.
The 2nd Respondent became the registered proprietor of L.R. No. Kamagambo/Kanyimach/1302 on or about 2nd October 2012 before eventual sale and transfer to Charles Ondiek Ogada on 27th November 2012.
That on the same date and at the same time, Maurice Odhiambo Ondiek, a brother to the 2nd Respondent sold to Charles Ondiek Ogada L. R. No. Kamagambo/Kanyimach/1304 which was a subdivision of L.R. No. Kamagambo/Kanyimach/1259.
Maurice Odhiambo Ondiek, a brother to the 2nd Respondent was equally registered as the proprietor of L.R. No. Kamagambo/Kanyimach/1304 on or about 2nd October 2012 before eventual sale and transfer to Charles Ondiek Ogada on or about 27th November 2012.
Charles Ondiek Ogada on or about I st March 2017 sold L.R. No. Kamagambo/Kanyimach/1302 and L.R. No. Kamagambo/Kanyimach/1304 to the Petitioner.
The 2nd Respondent, in spite of the sale as aforesaid, has declined to grant quiet and peaceful possession of the suit land to the Petitioner thereby necessitating the Petitioner to file Rongo ELC Case No. E06 of 2023, Johnson Otieno Adera v. Chrisantus Owuor Ondiek on 15 th February 2023.
The 2nd Petitioner did file a statement of defence and counterclaim on 28th July 2023 and introduced the issue that the suit land was originally L.R. No. Kamagambo/Kanyimach/679 in the name of his deceased father, Ondiek Ogwang, that died on 13 th June 2010 and in support thereof introduced a certificate of death obtained on 19th May 2023, over three months after the suit had been filed.
On the face of the said certificate of death and against the backdrop of the relevant statute, the Births and Deaths Registration Act, the same is openly and obviously illegally, corruptly, irregularly and fraudulently obtained with a view to defeat the land case aforesaid and is open to challenge and quashing.
The Petitioner has taken considerable time and expense to establish the factual and legal bases of the death of Ondiek Ogwang and established that the said Ondiek Ogwang died sometime in the first half of 2012 and that the date of 13 th June 2010 has been arbitrarily conjured up to defraud and is illegal and is not capable of corroboration.
Ondiek Ogwang was a resident of Rongo Sub-County that is a compulsory registration area under the Births and Deaths Registration Act and could not have been buried without a burial permit and so the alleged failure by the I st & 2nd Respondents to avail a burial permit and to proceed to issue a certificate of death is illegal and liable to quashing.
It is the position of the Petitioner that the certificate of death has been corruptly, illegally and fraudulently obtained with the active collusion of the I st Respondent and with a view to defeat and defraud the Petitioner, an innocent purchaser for value.
The certificate of death has been obtained in violation of express and specific provisions of the Constitution and statute law, the Births and Deaths Registration Act and is liable to be quashed.
That the issuance of a certificate of death is a purely administrative function that must accord with the Constitution and statute law and in instances where it is allegedly procured late and outside the law then the potential to affect rights of members of the public that are not the immediate family members of the deceased is high and the I st Respondent must ensure that there is involvement of the public.
The I St Respondent failed to abide the law in the issuance of the impugned certificate of death and most importantly failed to strictly follow the mandatory provisions of section 19 of the Births and Deaths Registration Act in that the 1 st Respondent proceeded to illegally issue the certificate of death without proof of death by way of
(e) Burial permit.
(f) Medical certificate as to cause of death.
(g) Notice in writing that the medical certificate has been signed by a medical practitioner.
(h) Death report.
The I st Respondent also failed to follow the law by making a form of death report to the nearest magistrate or police officer as required under section 19(2) of the Births and Deaths Registration Act.
That the I st Respondent is aware that the death of Ondiek Ogwang was to be notified compulsorily and that failure to notify is an offence under section 22 of the Births and Deaths Registration Act and consequently took administrative action that is not violating the rights of the Petitioner to land acquired for valuable consideration.
The process leading to the registration of the death of Ondiek Ogwang and the issuance of the certificate of death is irregular, corrupt, illegal and unreasonable and is liable to be quashed.
That under section 26(4) of the Births and Deaths Registration Act, a certified extract of the records of the I st Respondent are admissible in Court without proof and consequently it is imperative that the illegalities committed by the 1 st Respondent be reviewed by this Court with a view to the same being quashed.
The I st Respondent has no power to purport to register a late death in a compulsory registration area without a burial permit having been issued and any such registration can only happen upon an inquiry and a death report that can only be issued by a police officer or magistrate and that in the absence of such a death report upon inquiry, the I St Respondent has no power to purport to register a death that has no burial permit.
That the 1st Respondent, contrary to the powers vested in the principal registrar under section 8 of the Births and Deaths Registration Act purported to grant to himself the authority to register a death outside six months and without a burial permit.
That it is mandatory that no person should be buried without a burial permit and that it is an offence to bury or inter a person without a burial permit and consequently in the face of the potential illegality and criminality, the 1 st Respondent could not make a registration unless an inquiry is undertaken by a police officer or magistrate and in a public manner.
That the death was reported allegedly more than 13 years after death and without proof of death documents envisaged under section 19(1) of the Births and deaths Registration Act and consequently this was a proper case for an inquiry and public inquest before a certificate of death could be issued.
That the death of Ondiek Ogwang and the alleged subsequent burial without a burial permit when that was compulsory and mandatory raises reasonable suspicion that many offences could have occurred during and after such death and consequently it is a proper case for an inquiry and inquest.
That at the very least the 2nd Respondent committed an offence by burying his father Ondiek Ogwang without a burial permit and allegedly waiting for 13 years to make a report to the Ist Respondent and collude with the Ist Respondent to have the certificate of death issued belatedly and in an irregular and illegal manner so as to commit fraud on innocent parties.
The Ist Respondent was complicit in not following the law, the enabling statute, but also in facilitating the 2nd Respondent in a criminal enterprise.
The Petitioner has contended that the Respondents have violated Articles 10, 47 of the Constitution in the manner pleaded and particularized in the body of the petition.
The Petitioner argued that as a result of the violations particularized in the petition he had suffered or is likely to suffer as follows:-
The Petitioner purchased L.R. No. Kamagambo/Kanyimach/1302 and L.R. No. Kamagambo/Kanyimach/1304 from one Charles Ondiek Ogada on or about 1 st March 2017.
Charles Ondiek Ogada had purchased the aforesaid parcels of land from the 2nd Respondent and his brother Maurice Odhiambo Ondiek, respectively, on or abouf 27th November 2012.
The 2nd Respondent in order to avoid the sales and transfers that he took part into has with the collusion of the 2nd Respondent purported to backdate the death of his father, Ondiek Ogwang, the original owner of L.R. No. Kamagambo/Kanyimach/679 that was subdivided during his father's lifetime on or about I st December 2011 so as to claim that the father, Ondiek Ogwang, died intestate and to defeat the sales or purchases.
The illegal and certificate of death of Ondiek Ogwang procured by the 2nd Respondent with the corrupt collusion of the 1st Respondent is susceptible to review by this Court as an administrative action and be quashed.
The Petitioner stands to be injured by loss of the suit land if the illegally obtained certificate of death is not quashed.
The 2nd Respondent and his brother, Maurice Odhiambo Ondiek have also sold certain subdivisions to other innocent persons one of them being Mark Okundi and innocent members of the public stand to suffer injury through fraud by use of the said certificate of death.
The Petitioner has further gave details regarding any civil, criminal or other litigation involving the Petitioner which could have a legal nexus with the issue raised in the suit as follows:-
The Petitioner has sued the 2nd Respondent and his brother, Maurice Odhiambo Ondiek, in Rongo ELC E006 of 2023, Johnson Otieno Adera v. Chrisantus Owuor Ondiek & Maurice Odhiambo Ondiek, seeking, inter alia, a determination of the ownership of the aforesaid parcels of land.
The only defence that the 2nd Respondent has offered in the said civil case is hinged on the illegally and fraudulently obtained certificate of death of Ondiek Ogwang issued by the 1 st Respondent and without which the 2nd Respondent has no case.
The Petitioner has also lodged a formal complaint with the Directorate of Criminal Investigations for the professional and impartial investigation of the 1 st and 2nd Respondents in the acquisition of the impugned certificate of death with a view to ensuring that criminal prosecution is initiated and appropriate sanctions are imposed.
The Petition was supported by the affidavit of the Petitioner sworn on 4th September 2024 reiterating the grounds already stated on the face of the petition.
This petition was canvassed by way of written submissions of the Petitioner dated 20th March 2025 and the 2nd Respondent’s submissions dated 5th March 2025.
ANALYSIS AND DETERMINATION.
Having considered the Petition, the affidavits filed in support and in opposition thereto, as well as the written submissions by the parties, the Court is of the view that the issues arising for determination are the following:
1. Whether the Petition meets the constitutional threshold required for constitutional petitions.
2. Whether the Petitioner has demonstrated violation or threatened violation of his constitutional rights under Articles 10 and 47 of the Constitution.
3. Whether the Petitioner has proved the allegations of fraud, illegality and irregularity in the issuance of the impugned certificate of death.
4. Whether the reliefs sought in the Petition are merited.
On whether the petition meets the constitutional threshold it is now settled law that a party seeking relief through a constitutional petition must plead the alleged constitutional violations with reasonable precision.
This principle was established in the case of Anarita Karimi Njeru v Republic (1979) where the Court held that a petitioner must set out with a reasonable degree of precision the constitutional provisions alleged to have been violated and the manner in which they have been violated.
The Court of Appeal reaffirmed this principle in Mumo Matemu v Trusted Society of Human Rights Alliance (2013) where it held that constitutional petitions must clearly particularize the rights violated and the manner of violation so as to enable the court and the Respondents to properly address the issues raised.
In the present Petition, the Petitioner alleges violation of Articles 10 and 47 of the Constitution on account of the manner in which the death of one Ondiek Ogwang was allegedly registered by the 1st Respondent and a certificate of death issued on 19th May 2023.
The Petitioner contends that the registration of the said death was undertaken irregularly and contrary to the provisions of the Births and Deaths Registration Act, and that the impugned certificate of death was obtained fraudulently in order to defeat the Petitioner’s claim in Rongo ELC Case No. E006 of 2023.
While the Petition sets out extensive factual allegations relating to the circumstances under which the impugned certificate of death was allegedly issued, the Court notes that the gravamen of the Petitioner’s complaint relates primarily to alleged non-compliance with the provisions of the Births and Deaths Registration Act.
The Court further notes that the dispute between the Petitioner and the 2nd Respondent arises from competing claims over parcels of land known as L.R. Nos. Kamagambo/Kanyimach/1302 and Kamagambo/Kanyimach/1304, which dispute is presently the subject of proceedings in Rongo ELC Case No. E006 of 2023.
It therefore appears that the impugned certificate of death forms part of the evidentiary issues arising in that pending land dispute.
Courts have consistently held that not every allegation of breach of statute or administrative procedure necessarily translates into a constitutional violation.
Where a dispute can be adequately resolved within the framework of ordinary civil proceedings, courts must be slow to convert such disputes into constitutional litigation.
In the circumstances, the Court finds that the Petition largely raises issues that can properly be addressed within the pending proceedings before the Environment and Land Court at Rongo.
On whether the Petitioner has demonstrated violation of Articles 10 and 47 of the Constitution, the Petitioner alleges that the Respondents violated Articles 10 and 47 of the Constitution by irregularly registering the death of Ondiek Ogwang and issuing the impugned certificate of death without the documents required under the Births and Deaths Registration Act.
Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair.
The Petitioner contends that the 1st Respondent failed to comply with the statutory requirements relating to proof of death, including the requirement for a burial permit, medical certificate or death report.
However, beyond the assertions made in the Petition and the supporting affidavit, the Petitioner did not place before this Court any documentary evidence demonstrating that the registration process was undertaken contrary to the law.
On the other hand, the 2nd Respondent has deponed that he followed the procedure for late registration of death by obtaining and completing the requisite forms, including certification by the local chief, and thereafter presenting the same to the office of the Registrar.
The Court observes that the Petitioner did not produce any material evidence demonstrating that the documents submitted during the registration process were irregular, forged or otherwise unlawful.
The Petitioner also asserted that he reported the matter to investigative authorities, including the Directorate of Criminal Investigations. However, no report, findings or investigative outcome from those authorities was placed before this Court to support the allegations made.
In the absence of such evidence, the Court is unable to conclude that the administrative action undertaken by the Registrar of Births and Deaths was unlawful, unreasonable or procedurally unfair so as to amount to a violation of Article 47 of the Constitution.
With regard to Article 10 of the Constitution, the Court notes that the Article sets out national values and principles of governance which guide state organs, state officers and public officers in the exercise of their functions.
However, Article 10 does not ordinarily create a stand-alone cause of action unless it is demonstrated that the impugned conduct directly infringes a specific constitutional right.
In the present case, the Petitioner did not demonstrate how the alleged breach of Article 10 translated into a concrete violation of his constitutional rights.
On whether the Petitioner proved the allegations of fraud, a central pillar of the Petitioner’s case is the allegation that the certificate of death was fraudulently obtained.
The law is well settled that allegations of fraud must not only be specifically pleaded but must also be strictly proved.
In Vijay Morjaria v Nansingh Madhusingh Dardar (2000) the Court of Appeal stated that allegations of fraud must be strictly pleaded and distinctly proved.
Similarly, in R.G. Patel v Lalji Makanji (1957) the Court held that allegations of fraud must be strictly proved and the standard of proof is higher than that required in ordinary civil cases.
The burden of proof rests upon the person alleging the fraud in accordance with Sections 107 and 109 of the Evidence Act (Kenya).
In the present case, the Petitioner alleged that the death of Ondiek Ogwang was backdated and that the certificate of death was issued fraudulently with the collusion of the Respondents.
However, apart from these assertions, the Petitioner did not produce any independent evidence demonstrating that the registration of the death was fraudulent.
No evidence was tendered to demonstrate that the forms used in the registration process were falsified, that the supporting documentation was forged, or that the officials involved acted unlawfully.
The Court therefore finds that the allegations of fraud made by the Petitioner remain unsubstantiated.
On whether the reliefs sought are merited the Petitioner seeks several reliefs including declarations, orders of certiorari to quash the certificate of death, orders of mandamus directing an inquiry and inquest, and injunctive orders restraining the Respondents from relying on the impugned certificate in his evidence in the proceedings in Rongo Court.
Given the findings of this Court that the Petitioner has not demonstrated violation of his constitutional rights and has not proved the allegations of fraud or illegality, the basis for granting the reliefs sought has not been established.
Furthermore, the issues concerning the ownership of the suit properties and the evidentiary value of the certificate of death are matters that fall squarely within the jurisdiction of the Environment and Land Court in the pending proceedings.
This Court therefore finds that the reliefs sought in this Petition are not warranted.
In light of the foregoing analysis, the court finds that the Petitioner has failed to demonstrate that the Respondents violated or threatened to violate his constitutional rights as alleged.
The Petitioner has also failed to prove the allegations of fraud, illegality or procedural impropriety in the issuance of the impugned certificate of death.
Accordingly, the Petition dated 4th November 2024 lacks merit and is hereby dismissed.
Costs shall follow the event.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 13TH DAY OF MARCH, 2026
(i) A declaration does issue that the 1 st Respondent cannot register a death of any person as a late registration or otherwise in the absence of a burial permit or a medical certificate or a certified death report issued by a magistrate or police officer under sections 19, 20 and 21 of the Births and Deaths Registration Act.
(j) A declaration does issue that the 1st tRespondent has no power to issue a written authority for the registration of a death after six months from the date of such death under section 8 of the Births and Deaths Registration Act and that such power is solely vested in the principal registrar.
(k) A declaration does issue that the registration of the death of Ondiek Ogwang National Identity Card No. 6691664 under certificate of death entry no. 12423000277 dated 19.5.2023 is unconstitutional, illegal, null and void.
(l) A judicial review order of certiorari does issue to bring into this Court and quash certificate of death entry no. 12423000277 dated 19.5.2023 for Ondiek Ogwang and that the same be expunged and omitted from the records of the I st Respondent.
(m) A judicial review order of mandamus compelling the competent magistrate at the Rongo Law Courts and the police, officer commanding•station at Kamagambo Police Station, Rongo to undertake an inquiry and to hold an inquest as to the cause, date and place of death of Ondiek Ogwang and make appropriate report and recommendations under the relevant provisions of the Births and Deaths Registration Act and the Criminal Procedure Code.
(n) An order of injunction does issue directed at the I st & 2nd Respondents and anyone acting under them from using, issuing any copies or certified copies or in any manner or way using certificate of death entry no. 12423000277 dated 19.5.2023.
(o) Such other or further orders as this Court may deem just to grant.
(p) Costs.
Brief facts of the petition are that on or about 27th November 2012 the 2nd Respondent sold to one Charles Ondiek Ogada L.R. No. Kamagambo/Kanyimach/1302 which was a subdivision of L.R. No. Kamagambo/Kanyimach/1258 which was then registered in the name of the 2 nd Respondent.
The 2nd Respondent became the registered proprietor of L.R. No. Kamagambo/Kanyimach/1302 on or about 2nd October 2012 before eventual sale and transfer to Charles Ondiek Ogada on 27th November 2012.
That on the same date and at the same time, Maurice Odhiambo Ondiek, a brother to the 2nd Respondent sold to Charles Ondiek Ogada L. R. No. Kamagambo/Kanyimach/1304 which was a subdivision of L.R. No. Kamagambo/Kanyimach/1259.
Maurice Odhiambo Ondiek, a brother to the 2nd Respondent was equally registered as the proprietor of L.R. No. Kamagambo/Kanyimach/1304 on or about 2nd October 2012 before eventual sale and transfer to Charles Ondiek Ogada on or about 27th November 2012.
Charles Ondiek Ogada on or about I st March 2017 sold L.R. No. Kamagambo/Kanyimach/1302 and L.R. No. Kamagambo/Kanyimach/1304 to the Petitioner.
The 2nd Respondent, in spite of the sale as aforesaid, has declined to grant quiet and peaceful possession of the suit land to the Petitioner thereby necessitating the Petitioner to file Rongo ELC Case No. E06 of 2023, Johnson Otieno Adera v. Chrisantus Owuor Ondiek on 15 th February 2023.
The 2nd Petitioner did file a statement of defence and counterclaim on 28th July 2023 and introduced the issue that the suit land was originally L.R. No. Kamagambo/Kanyimach/679 in the name of his deceased father, Ondiek Ogwang, that died on 13 th June 2010 and in support thereof introduced a certificate of death obtained on 19th May 2023, over three months after the suit had been filed.
On the face of the said certificate of death and against the backdrop of the relevant statute, the Births and Deaths Registration Act, the same is openly and obviously illegally, corruptly, irregularly and fraudulently obtained with a view to defeat the land case aforesaid and is open to challenge and quashing.
The Petitioner has taken considerable time and expense to establish the factual and legal bases of the death of Ondiek Ogwang and established that the said Ondiek Ogwang died sometime in the first half of 2012 and that the date of 13 th June 2010 has been arbitrarily conjured up to defraud and is illegal and is not capable of corroboration.
Ondiek Ogwang was a resident of Rongo Sub-County that is a compulsory registration area under the Births and Deaths Registration Act and could not have been buried without a burial permit and so the alleged failure by the I st & 2nd Respondents to avail a burial permit and to proceed to issue a certificate of death is illegal and liable to quashing.
It is the position of the Petitioner that the certificate of death has been corruptly, illegally and fraudulently obtained with the active collusion of the I st Respondent and with a view to defeat and defraud the Petitioner, an innocent purchaser for value.
The certificate of death has been obtained in violation of express and specific provisions of the Constitution and statute law, the Births and Deaths Registration Act and is liable to be quashed.
That the issuance of a certificate of death is a purely administrative function that must accord with the Constitution and statute law and in instances where it is allegedly procured late and outside the law then the potential to affect rights of members of the public that are not the immediate family members of the deceased is high and the I st Respondent must ensure that there is involvement of the public.
The I St Respondent failed to abide the law in the issuance of the impugned certificate of death and most importantly failed to strictly follow the mandatory provisions of section 19 of the Births and Deaths Registration Act in that the 1 st Respondent proceeded to illegally issue the certificate of death without proof of death by way of
(e) Burial permit.
(f) Medical certificate as to cause of death.
(g) Notice in writing that the medical certificate has been signed by a medical practitioner.
(h) Death report.
The I st Respondent also failed to follow the law by making a form of death report to the nearest magistrate or police officer as required under section 19(2) of the Births and Deaths Registration Act.
That the I st Respondent is aware that the death of Ondiek Ogwang was to be notified compulsorily and that failure to notify is an offence under section 22 of the Births and Deaths Registration Act and consequently took administrative action that is not violating the rights of the Petitioner to land acquired for valuable consideration.
The process leading to the registration of the death of Ondiek Ogwang and the issuance of the certificate of death is irregular, corrupt, illegal and unreasonable and is liable to be quashed.
That under section 26(4) of the Births and Deaths Registration Act, a certified extract of the records of the I st Respondent are admissible in Court without proof and consequently it is imperative that the illegalities committed by the 1 st Respondent be reviewed by this Court with a view to the same being quashed.
The I st Respondent has no power to purport to register a late death in a compulsory registration area without a burial permit having been issued and any such registration can only happen upon an inquiry and a death report that can only be issued by a police officer or magistrate and that in the absence of such a death report upon inquiry, the I St Respondent has no power to purport to register a death that has no burial permit.
That the 1st Respondent, contrary to the powers vested in the principal registrar under section 8 of the Births and Deaths Registration Act purported to grant to himself the authority to register a death outside six months and without a burial permit.
That it is mandatory that no person should be buried without a burial permit and that it is an offence to bury or inter a person without a burial permit and consequently in the face of the potential illegality and criminality, the 1 st Respondent could not make a registration unless an inquiry is undertaken by a police officer or magistrate and in a public manner.
That the death was reported allegedly more than 13 years after death and without proof of death documents envisaged under section 19(1) of the Births and deaths Registration Act and consequently this was a proper case for an inquiry and public inquest before a certificate of death could be issued.
That the death of Ondiek Ogwang and the alleged subsequent burial without a burial permit when that was compulsory and mandatory raises reasonable suspicion that many offences could have occurred during and after such death and consequently it is a proper case for an inquiry and inquest.
That at the very least the 2nd Respondent committed an offence by burying his father Ondiek Ogwang without a burial permit and allegedly waiting for 13 years to make a report to the Ist Respondent and collude with the Ist Respondent to have the certificate of death issued belatedly and in an irregular and illegal manner so as to commit fraud on innocent parties.
The Ist Respondent was complicit in not following the law, the enabling statute, but also in facilitating the 2nd Respondent in a criminal enterprise.
The Petitioner has contended that the Respondents have violated Articles 10, 47 of the Constitution in the manner pleaded and particularized in the body of the petition.
The Petitioner argued that as a result of the violations particularized in the petition he had suffered or is likely to suffer as follows:-
The Petitioner purchased L.R. No. Kamagambo/Kanyimach/1302 and L.R. No. Kamagambo/Kanyimach/1304 from one Charles Ondiek Ogada on or about 1 st March 2017.
Charles Ondiek Ogada had purchased the aforesaid parcels of land from the 2nd Respondent and his brother Maurice Odhiambo Ondiek, respectively, on or abouf 27th November 2012.
The 2nd Respondent in order to avoid the sales and transfers that he took part into has with the collusion of the 2nd Respondent purported to backdate the death of his father, Ondiek Ogwang, the original owner of L.R. No. Kamagambo/Kanyimach/679 that was subdivided during his father's lifetime on or about I st December 2011 so as to claim that the father, Ondiek Ogwang, died intestate and to defeat the sales or purchases.
The illegal and certificate of death of Ondiek Ogwang procured by the 2nd Respondent with the corrupt collusion of the 1st Respondent is susceptible to review by this Court as an administrative action and be quashed.
The Petitioner stands to be injured by loss of the suit land if the illegally obtained certificate of death is not quashed.
The 2nd Respondent and his brother, Maurice Odhiambo Ondiek have also sold certain subdivisions to other innocent persons one of them being Mark Okundi and innocent members of the public stand to suffer injury through fraud by use of the said certificate of death.
The Petitioner has further gave details regarding any civil, criminal or other litigation involving the Petitioner which could have a legal nexus with the issue raised in the suit as follows:-
The Petitioner has sued the 2nd Respondent and his brother, Maurice Odhiambo Ondiek, in Rongo ELC E006 of 2023, Johnson Otieno Adera v. Chrisantus Owuor Ondiek & Maurice Odhiambo Ondiek, seeking, inter alia, a determination of the ownership of the aforesaid parcels of land.
The only defence that the 2nd Respondent has offered in the said civil case is hinged on the illegally and fraudulently obtained certificate of death of Ondiek Ogwang issued by the 1 st Respondent and without which the 2nd Respondent has no case.
The Petitioner has also lodged a formal complaint with the Directorate of Criminal Investigations for the professional and impartial investigation of the 1 st and 2nd Respondents in the acquisition of the impugned certificate of death with a view to ensuring that criminal prosecution is initiated and appropriate sanctions are imposed.
The Petition was supported by the affidavit of the Petitioner sworn on 4th September 2024 reiterating the grounds already stated on the face of the petition.
This petition was canvassed by way of written submissions of the Petitioner dated 20th March 2025 and the 2nd Respondent’s submissions dated 5th March 2025.
ANALYSIS AND DETERMINATION.
Having considered the Petition, the affidavits filed in support and in opposition thereto, as well as the written submissions by the parties, the Court is of the view that the issues arising for determination are the following:
1. Whether the Petition meets the constitutional threshold required for constitutional petitions.
2. Whether the Petitioner has demonstrated violation or threatened violation of his constitutional rights under Articles 10 and 47 of the Constitution.
3. Whether the Petitioner has proved the allegations of fraud, illegality and irregularity in the issuance of the impugned certificate of death.
4. Whether the reliefs sought in the Petition are merited.
On whether the petition meets the constitutional threshold it is now settled law that a party seeking relief through a constitutional petition must plead the alleged constitutional violations with reasonable precision.
This principle was established in the case of Anarita Karimi Njeru v Republic (1979) where the Court held that a petitioner must set out with a reasonable degree of precision the constitutional provisions alleged to have been violated and the manner in which they have been violated.
The Court of Appeal reaffirmed this principle in Mumo Matemu v Trusted Society of Human Rights Alliance (2013) where it held that constitutional petitions must clearly particularize the rights violated and the manner of violation so as to enable the court and the Respondents to properly address the issues raised.
In the present Petition, the Petitioner alleges violation of Articles 10 and 47 of the Constitution on account of the manner in which the death of one Ondiek Ogwang was allegedly registered by the 1st Respondent and a certificate of death issued on 19th May 2023.
The Petitioner contends that the registration of the said death was undertaken irregularly and contrary to the provisions of the Births and Deaths Registration Act, and that the impugned certificate of death was obtained fraudulently in order to defeat the Petitioner’s claim in Rongo ELC Case No. E006 of 2023.
While the Petition sets out extensive factual allegations relating to the circumstances under which the impugned certificate of death was allegedly issued, the Court notes that the gravamen of the Petitioner’s complaint relates primarily to alleged non-compliance with the provisions of the Births and Deaths Registration Act.
The Court further notes that the dispute between the Petitioner and the 2nd Respondent arises from competing claims over parcels of land known as L.R. Nos. Kamagambo/Kanyimach/1302 and Kamagambo/Kanyimach/1304, which dispute is presently the subject of proceedings in Rongo ELC Case No. E006 of 2023.
It therefore appears that the impugned certificate of death forms part of the evidentiary issues arising in that pending land dispute.
Courts have consistently held that not every allegation of breach of statute or administrative procedure necessarily translates into a constitutional violation.
Where a dispute can be adequately resolved within the framework of ordinary civil proceedings, courts must be slow to convert such disputes into constitutional litigation.
In the circumstances, the Court finds that the Petition largely raises issues that can properly be addressed within the pending proceedings before the Environment and Land Court at Rongo.
On whether the Petitioner has demonstrated violation of Articles 10 and 47 of the Constitution, the Petitioner alleges that the Respondents violated Articles 10 and 47 of the Constitution by irregularly registering the death of Ondiek Ogwang and issuing the impugned certificate of death without the documents required under the Births and Deaths Registration Act.
Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair.
The Petitioner contends that the 1st Respondent failed to comply with the statutory requirements relating to proof of death, including the requirement for a burial permit, medical certificate or death report.
However, beyond the assertions made in the Petition and the supporting affidavit, the Petitioner did not place before this Court any documentary evidence demonstrating that the registration process was undertaken contrary to the law.
On the other hand, the 2nd Respondent has deponed that he followed the procedure for late registration of death by obtaining and completing the requisite forms, including certification by the local chief, and thereafter presenting the same to the office of the Registrar.
The Court observes that the Petitioner did not produce any material evidence demonstrating that the documents submitted during the registration process were irregular, forged or otherwise unlawful.
The Petitioner also asserted that he reported the matter to investigative authorities, including the Directorate of Criminal Investigations. However, no report, findings or investigative outcome from those authorities was placed before this Court to support the allegations made.
In the absence of such evidence, the Court is unable to conclude that the administrative action undertaken by the Registrar of Births and Deaths was unlawful, unreasonable or procedurally unfair so as to amount to a violation of Article 47 of the Constitution.
With regard to Article 10 of the Constitution, the Court notes that the Article sets out national values and principles of governance which guide state organs, state officers and public officers in the exercise of their functions.
However, Article 10 does not ordinarily create a stand-alone cause of action unless it is demonstrated that the impugned conduct directly infringes a specific constitutional right.
In the present case, the Petitioner did not demonstrate how the alleged breach of Article 10 translated into a concrete violation of his constitutional rights.
On whether the Petitioner proved the allegations of fraud, a central pillar of the Petitioner’s case is the allegation that the certificate of death was fraudulently obtained.
The law is well settled that allegations of fraud must not only be specifically pleaded but must also be strictly proved.
In Vijay Morjaria v Nansingh Madhusingh Dardar (2000) the Court of Appeal stated that allegations of fraud must be strictly pleaded and distinctly proved.
Similarly, in R.G. Patel v Lalji Makanji (1957) the Court held that allegations of fraud must be strictly proved and the standard of proof is higher than that required in ordinary civil cases.
The burden of proof rests upon the person alleging the fraud in accordance with Sections 107 and 109 of the Evidence Act (Kenya).
In the present case, the Petitioner alleged that the death of Ondiek Ogwang was backdated and that the certificate of death was issued fraudulently with the collusion of the Respondents.
However, apart from these assertions, the Petitioner did not produce any independent evidence demonstrating that the registration of the death was fraudulent.
No evidence was tendered to demonstrate that the forms used in the registration process were falsified, that the supporting documentation was forged, or that the officials involved acted unlawfully.
The Court therefore finds that the allegations of fraud made by the Petitioner remain unsubstantiated.
On whether the reliefs sought are merited the Petitioner seeks several reliefs including declarations, orders of certiorari to quash the certificate of death, orders of mandamus directing an inquiry and inquest, and injunctive orders restraining the Respondents from relying on the impugned certificate in his evidence in the proceedings in Rongo Court.
Given the findings of this Court that the Petitioner has not demonstrated violation of his constitutional rights and has not proved the allegations of fraud or illegality, the basis for granting the reliefs sought has not been established.
Furthermore, the issues concerning the ownership of the suit properties and the evidentiary value of the certificate of death are matters that fall squarely within the jurisdiction of the Environment and Land Court in the pending proceedings.
This Court therefore finds that the reliefs sought in this Petition are not warranted.
In light of the foregoing analysis, the court finds that the Petitioner has failed to demonstrate that the Respondents violated or threatened to violate his constitutional rights as alleged.
The Petitioner has also failed to prove the allegations of fraud, illegality or procedural impropriety in the issuance of the impugned certificate of death.
Accordingly, the Petition dated 4th November 2024 lacks merit and is hereby dismissed.
Costs shall follow the event.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 13TH DAY OF MARCH, 2026