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Court of AppealDismissedCivil Appeal No. 13 of 2011

Samuel Onindo Wambi v C O O & another [2015] KECA 620 (KLR)

Court of Appeal of Kenya
18 June 2015
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Court of Appeal at Kisumu (Maraga, Gatembu Kairu and Murgor JJ.A) dismissed this appeal against a decision of Aroni, J. of the High Court at Kisumu delivered on 9th April 2010 in H.C.C.S. No. 143 of 2009, which had directed that the deceased, V J A A, be buried according to her wishes on her land in Kakamega District. The dispute arose between the deceased's step brother and adopted son (the respondents) and the appellant, the father of the deceased's incapacitated husband D, who claimed a customary right under Luo Customary Law to bury her. The appellant argued that under Section 3(2) of the Judicature Act the court should be guided by African Customary Law, citing Joash Ochieng Ougo v Virginia Wambui Otieno. The respondents countered that the deceased's wishes reigned supreme in burial matters. The court framed a single issue: whether the deceased's wishes or customary law prevails. It applied Edwin Otieno Ombajo v Martin Odera Okumu, holding that a husband's right to bury his wife may be superseded where his conduct renders him undeserving; the appellant's family had neglected, blamed and insulted the deceased, who single-handedly buried their two children and suffered a stroke after derogatory funeral remarks. The court found her recorded wishes categorical - to be buried on her Kakamega land and never at Kamagambo - and held that burial wishes are akin to a will and, save for a compelling reason, supersede customary law. The appeal was dismissed with each party bearing its own costs. The decision affirms the primacy of a deceased person's expressed burial wishes over customary law and binds subordinate courts accordingly.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.In burial matters, what factor supersedes the other: the deceased's wishes or the customary law to which the deceased was subject?
  2. 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. 3.Whether the deceased's expressed wishes as to the place of burial were equivocal

Key legal issues

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01

Whether the deceased's wishes as to burial supersede Luo Customary Law

Holding

Yes. The deceased's clearly expressed burial wishes take precedence over customary law absent a compelling reason to depart from them.

Reasoning

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.

p. 3
02

Whether the appellant's conduct disentitled him to the right of burial under customary law

Holding

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.

Reasoning

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.

p. 3
03

Whether the deceased's expressed wishes were equivocal as contended by the appellant

Holding

No. Her recorded statements were categorical that she was never to be buried at Kamagambo, the father's home.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Each party bears its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 3

Costs

Each party bears its own costs

Quotable passages

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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.
p. 3Primacy of deceased's burial wishes over customary law
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.
p. 3Conduct disentitling a party to the customary right of burial
In those circumstances, we find that the father was not deserving of the right to bury the deceased.
p. 3Application of the undeserving-conduct principle to the appellant
Consequently, we find no merit in this appeal and we accordingly dismiss it. We order that each party bears its own costs.
p. 3Disposition - appeal dismissed with no order as to costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.