SAN v GW [2020] KECA 46 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a wife estranged from her husband for 26 years cannot override his wish to be buried with his second wife in Bungoma.
What this practically means
#Executive summary
#Key legal issues
#The applicable law in burial disputes and the weight of the deceased's wishes
Burial disputes are governed by the deceased's personal law; the deceased's wishes, though not binding, should be honoured where they do not contradict custom, general law, public policy or safety
Customary law applies via section 3(2) of the Judicature Act; courts have used customary law, common law and other bodies of law in burial disputes. There is no property in a dead body and a dead person cannot decide his own burial, so wishes are not binding, but compelling reasons are needed to disregard them. Here the deceased's wish to be buried at Bungoma did not contradict Luo custom or general law.
Whether conduct can defeat the right to bury
A claimant's conduct, including prolonged separation and absence of sympathy during illness, can extinguish the right to bury
Relying on Samuel Onindo Wambi, the Court noted the appellant was separated from the deceased for over 26 years, played no role in his life, and did not visit him during his two-year illness. It was therefore just that the deceased's wishes and choice of burial place be honoured rather than the first wife's claim based on custom alone.
Scope of the Court's jurisdiction on second appeal
The Court is confined to matters of law and will not interfere with concurrent findings of fact absent misdirection
Under section 72(1) of the Civil Procedure Act, the Court considers only points of law, and may consider facts only where the two courts below considered matters they should not have, or failed to consider matters they should have. The Court found both courts below properly directed themselves on the law and reached the correct determination.
Exceptions to the custom of burial at the first wife's home
There are exceptions to the Luo custom that a polygamous man should be buried at the first wife's home, and this case fell within them
Both courts found as a fact that the Bungoma home was established in accordance with Luo custom. The deceased expressed his wish to the appellant, his children, sister and stepmother; the clan members were informed of the burial plans in Bungoma and consented. The Court agreed the dispute presented such an exception.
Legal principles established
#- Burial disputes are governed by the personal law of the deceased; the wishes of the deceased, though not binding, must so far as possible be given effect so long as they are not contrary to custom, general law or policy
- A person's conduct towards the deceased while alive, including absence of closeness or sympathy, can extinguish that person's right to bury the deceased
- In a second appeal, the Court of Appeal is restricted to matters of law, and will consider facts only where the courts below considered matters they should not have, or failed to consider matters they should have
- Custom must be proved by evidence of its existence; persons closest to the deceased (spouse, children, parents, siblings, in that order) and those demonstrably close to the deceased in life have the right to bury
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs
- On appeal from
- High Court at Kisumu
- Civil Appeal No. 81 of 2019
- Jurisdiction invoked
- Second appeal under section 72(1) of the Civil Procedure Act, restricting the Court to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAN v GW [2020] KECA 46 (KLR)", Case Analysis (2020). Civil Appeal No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/46/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.