Samuel Onindo Wambi v C O O & another [2015] KECA 620 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a deceased person's clearly expressed burial wishes override customary law, unless there is a compelling reason.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.In burial matters, what factor supersedes the other: the deceased's wishes or the customary law to which the deceased was subject?
- 2.Whether the appellant (the husband's father), having regard to his conduct towards the deceased, was deserving of the right to bury her under Luo Customary Law
- 3.Whether the deceased's expressed wishes as to the place of burial were equivocal
Key legal issues
#Whether the deceased's wishes as to burial supersede Luo Customary Law
Yes. The deceased's clearly expressed burial wishes take precedence over customary law absent a compelling reason to depart from them.
The court reasoned that burial wishes are akin to a will. Five witnesses testified the deceased repeatedly stated she wished to be buried on her land in Kakamega and never at Kamagambo. The court rejected the argument that her statement was equivocal, and found no compelling reason to displace her wishes with Luo Customary Law.
Whether the appellant's conduct disentitled him to the right of burial under customary law
Yes. The father and his family's mistreatment of the deceased - blame, neglect, derogatory remarks and abandonment - rendered him undeserving of the right to bury her.
The court catalogued the father's conduct: blaming the deceased for the children's condition, taking the incapacitated husband away without her consent, subjecting her to a miserable life, and making derogatory remarks at the child's funeral that caused her a stroke. Following Edwin Otieno Ombajo, such conduct superseded any customary right of burial.
Whether the deceased's expressed wishes were equivocal as contended by the appellant
No. Her recorded statements were categorical that she was never to be buried at Kamagambo, the father's home.
Recordings of a function held in her honour captured the deceased directing that she be taken to 'KK' (Kakamega) if she had no land anywhere and expressly refusing Kamagambo. The court held the statement spoke for itself and rejected the submission of equivocation, noting she was categorical her remains should never be taken to Kamagambo.
Legal principles established
#- A deceased person's burial wishes are akin to a will and, save for a compelling reason, supersede customary law and must be followed.
- A husband's (or his family's) customary right to bury a deceased wife may be superseded where the husband's or family's conduct renders them undeserving of that right.
Court orders
#- 1.The appeal is dismissed
- 2.Each party bears its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.S. No. 143 of 2009
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution/Inheritance of the appeal from the High Court (Civil Appeal, Judicature Act framework including Section 3(2) on African Customary Law)
Relief refused
#A declaration that the appellant has the right under Luo Customary Law to bury the deceased's remains at his home in Kamagambo, Rongo
The deceased's wishes supersede customary law and the father's conduct rendered him undeserving of the right to bury her; moreover the appellant did not seek exhumation
Costs
Each party bears its own costs
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.
A deceased person’s burial wishes are akin to a will. Save for a compelling reason, they supersede customary law and should be followed.
the husband’s right to bury his deceased wife’s body may be superseded by the deceased’s wishes if the husband’s behavior renders him undeserving to bury the remains of his wife.
In those circumstances, we find that the father was not deserving of the right to bury the deceased.
Consequently, we find no merit in this appeal and we accordingly dismiss it. We order that each party bears its own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nzuki v Kamwanza & 2 others (Civil Case E057 of 2025) [2025] KEMC 44 (KLR)[2025] KEMC 44 (KLR)17 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Samuel Onindo Wambi v C O O & another [2015] KECA 620 (KLR)", Case Analysis (2015). Civil Appeal No. 13 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/620/eng@2015-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.