Edwin Otieno Ombajo v Martin Odera Okumu
The bottom line
#Kenya's Court of Appeal ruled that a husband's right to bury his wife under customary law can be lost through desertion and failure to maintain her.
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 trial Judge misdirected himself on the court's jurisdiction and discretion under section 3(2) of the Judicature Act in applying Luo customary law to a burial dispute
- 2.Whether a right under customary law, here the husband's right to bury his wife, may be impugned by unbecoming conduct on the part of the person on whom it rests
Key legal issues
#Scope of the court's discretion under section 3(2) of the Judicature Act
Section 3(2) obliges courts to be guided by African customary law where applicable and not repugnant; the discretion is not whether to apply customary law but whether to enforce the right it vests, in accordance with substantial justice.
The court endorsed Virginia Wamboi Otieno: 'guided' means led by customary law as the principal law, subject only to the statutory qualifications of repugnancy, consistency with written law and substantial justice. The section's wording gives courts flexibility to weigh all circumstances of a case without whittling down the place of customary law. The trial Judge erred by confining himself to the fact of marriage and ignoring the discretion.
Whether the husband's customary-law right to bury his wife is defeated by his conduct
The right is not absolute; wilful desertion and failure to maintain, grounds for divorce under Luo customary law, were established against the respondent and were relevant considerations that the trial Judge failed to weigh.
Cotran's Restatement of African Law identifies wilful desertion and failure to maintain as grounds of divorce under Luo customary law. Both were established against the respondent, who had ignored the deceased and the children, refused medical expenses, defaulted on maintenance and paid dowry only shortly before her death. His conduct showed he was undeserving to bury her, and the trial Judge should have looked beyond the fact of marriage.
Whether a statutory marriage not dissolved by decree preserves the burial right
The trial Judge erred in resting his decision essentially on the subsistence of the statutory marriage; the question was whether the respondent, though still a husband, was undeserving to bury the deceased.
The matters raised by the appellant were not aimed at showing that no marriage existed, but that although the respondent was the husband, his conduct divested him of the burial right. The trial Judge's confinement of his decision to the issue of marriage amounted to a misdirection on the jurisdiction under section 3(2) of the Judicature Act.
Legal principles established
#- Where African customary law is not caught by the qualifications in section 3(2) of the Judicature Act, courts must apply it, and the discretion lies not in whether to apply customary law but in whether to enforce the right it vests, having regard to the conduct and circumstances of the parties.
- The right of a husband under Luo customary law to bury his deceased wife is not absolute and may be defeated by his conduct, including desertion and failure to maintain.
- Customary law is dynamic and its application must be adapted to the individual circumstances of each case in the pursuit of substantial justice.
Court orders
#- 1.Appeal allowed (allowed on 4th November 1996, with reasons delivered 29th November 1996)
- 2.The ex parte order made by Mbito, J. set aside
- 3.The judgment of Khamoni, J. granting the respondent the right to bury the deceased reversed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 947 of 1996
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Judicature Act, Cap 8; Court of Appeal jurisdiction over appeals from the High Court)
Relief refused
#Any opinion on the effect of the deceased's alleged will, no grant of probate having been made
The court declined to express any view on the will's effect absent a grant of probate
Costs
No costs order recorded in the judgment
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.
The right to bury the body of a married woman under Luo Customary Law, ordinarily vests in her husband. The right is not, however, absolute. We say so advisedly.
So the discretion the courts have is not whether to apply customary law or not, but the discretion is to consider whether to enforce a right, which under that law vests in a particular person, or not.
We wish to observe here that customary law, like all other laws, is dynamic. Because it is not codified, its application is left to the good sense of the Judge or Judges who are called upon to apply it.
That coupled with the respondent's behaviour should have constrained the trial Judge to look beyond the fact of marriage.
It is for the foregoing reasons that we allowed the appellant's appeal.
Issues in the judgment
#The burial location ordered by the trial Judge is stated inconsistently within the judgment - 'East Asembo Location' in the description of the respondent's claim but 'East Gem Location, Siaya District' in the description of the judgment under appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ongola & 6 others v Owuor & 7 others (Civil Appeal E328 & E393 of 2025 (Consolidated)) [2026] KECA 260 (KLR)[2026] KECA 260 (KLR)13 Feb 2026
- Nzuki v Kamwanza & 2 others (Civil Case E057 of 2025) [2025] KEMC 44 (KLR)[2025] KEMC 44 (KLR)17 Mar 2025applied
- Wambua v Mutave & another (Civil Case E038 of 2024) [2024] KEMC 7 (KLR)[2024] KEMC 7 (KLR)2 Apr 2024applied
- Samuel Onindo Wambi v C O O & another [2015] KECA 620 (KLR)[2015] KECA 620 (KLR)18 Jun 2015applied
Cite this brief
#Cite this brief
Caselaw, "Edwin Otieno Ombajo v Martin Odera Okumu", Case Analysis (1996). Civil Appeal No. 209 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.