Apeli v Buluku [1980] KECA 39 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a widow could rebury her husband where he wished, but only after obtaining a government exhumation permit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court had jurisdiction to order the removal and re-interment of the deceased's remains
- 2.Whether the judge's order, made without reference to section 146 of the Public Health Act requiring a Ministerial exhumation permit, was made without jurisdiction
- 3.Whether the judge misapplied Bunyore customary law or acted contrary to public policy
- 4.Whether the High Court possesses a general discretion to order removal of remains
Key legal issues
#Jurisdiction of the High Court to order removal of a dead body
The High Court has jurisdiction to order removal of remains, exercising general jurisdiction in place of the English ecclesiastical courts, but any such order must be conditional upon a Ministerial exhumation permit under section 146 of the Public Health Act
Kenya has no ecclesiastical courts to grant faculties, so the High Court may exercise general jurisdiction in such matters. However, section 146 of the Public Health Act makes exhumation unlawful without a permit granted by the Minister, and such a permit may be granted only to the legal personal representative or next of kin. The trial judge was unaware of this provision because it was not raised below, but the omission was curable on appeal by amending the decree rather than by setting aside the order.
Effect to be given to the deceased's wishes regarding burial
The most important rule is to give effect, so far as possible, to the deceased's wishes; the deceased's firmly expressed wish to be buried at Bungoma, found as a fact, justified ordering removal there
Following English authority (Re Matheson), the court must keep faith with the dead and have regard to the deceased's wishes. Unlike in Re Matheson, the court did not have to resort to 'supposed' wishes, since the trial judge accepted evidence that the deceased specifically wished burial at Bungoma. The widow, as person applying for letters of administration, was the appropriate person to seek the order.
Application of customary law versus received English law
The court was properly 'guided' by Bunyore customary law under section 3(2) of the Judicature Act, and the trial judge neither misapprehended nor misapplied it; English law principles on burial are relevant if suitably adapted to Kenyan conditions
Both sides led evidence of custom; the trial judge appreciated he was enjoined to be guided by customary law under section 3(2) of the Judicature Act. The appellate court found no misapplication of that law and no breach of public policy. English law, including T. Williams and Mortimer's statement of the law and Re Matheson, was considered suitable for application in Kenya subject to local qualifications under section 3(1) of the Judicature Act.
Legal principles established
#- Apart from exhumation ordered for inquiry into cause of death, no body interred in Kenya may be exhumed without a permit granted by the Minister responsible for health, granted only to the legal personal representative or next of kin
- A High Court order for removal of remains is not a general or absolute discretion but must always be conditional upon the grant of the statutory exhumation permit
- The wishes of the deceased as to burial, though not legally binding, must so far as possible be given effect to, where not contrary to custom, the general law or public policy
Court orders
#- 1.Paragraph (1) of the High Court decree amended by adding, after the words 'Bungoma District', the words 'conditionally upon a permit to this effect being granted by the Minister under section 146 of the Public Health Act'
- 2.The same conditional words added at the end of the High Court judgment as reproduced in the appellate judgment
- 3.Appeal dismissed in all other respects
- 4.Appellants ordered to pay one-half of the respondent's costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- null
- Jurisdiction invoked
- General appellate jurisdiction of the Court of Appeal over a High Court decision; sections 3(1) and 3(2) of the Judicature Act (Cap 8) engaged on the applicable law
Relief refused
#Appellants' submission that the High Court order was made without jurisdiction and must be set aside
The judge had jurisdiction; only the conditional permit requirement was missing
Appellants' attack on the decision as contrary to customary law and public policy
The judge correctly heard and applied the customary law evidence and considered public policy; only the characterisation of the discretion as 'general' was wrong
Costs
The appellants to pay to the respondent one-half of her costs of this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In all other respects I would dismiss this appeal, and I would order the appellants to pay to the respondent one-half of her costs of this appeal.
I would order that paragraph (1) of the decree be amended by adding at the end thereof, after the words "Bungoma District", the words "conditionally upon a permit to this effect being granted by the Minister under section 146 of the Public Health Act,"
That discretion, in my view, is not general or absolute; it must always be subject to the Minister granting a permit.
no dead body wherever interred in Kenya can be exhumed without a permit granted by the Minister for the time being responsible for matter relating to health
the wishes of the deceased, though not binding, must, so far as is possible, be given effect to.
Issues in the judgment
#The party names and the case number of the High Court suit and the appeal do not appear in the judgment; the parties are described only as the appellants (brothers of the deceased) and the respondent (widow), and the judgment is popularly associated with the Wambui Otieno litigation but the text does not name the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apeli v Buluku [1980] KECA 39 (KLR)", Case Analysis (1980). Civil Appeal (Kisumu), judgment delivered 14 January 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1980/39/eng@1980-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.