Kudha & 2 others v Adhola & another (Civil Appeal E220 of 2024) [2025] KECA 824 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that without a completed divorce, a first wife keeps the legal right to bury her husband, even if he lived with another woman.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is entitled to bury the deceased - the first wife despite long separation, or the second wife who lived with and cared for him?
- 2.Whether the learned judge erred in failing to consider whether the conduct of Patrisia and the deceased while alive extinguished her right to bury the deceased
- 3.Whether the 1st respondent's witnesses on Luo custom had to be expert witnesses under sections 48 and 51 of the Evidence Act
- 4.Where the deceased is to be buried - the matrimonial home identified in the High Court judgment as 'Kudha' and the correction of that description under the slip rule
Key legal issues
#Right to bury in a polygamous Luo customary marriage where no decree absolute issued
Patrisia retained her position as first wife since the divorce was never concluded, and the learned judge did not err in finding her right to bury the deceased in her home
Both parties agreed the divorce was never completed for want of a decree absolute, so Patrisia remained the deceased's wife. Although the deceased lived with Matilda at Ongielo, the deceased maintained contact with Patrisia - attending dowry negotiations and ceremonies, buying land and building her home - so his conduct did not treat her as a totally estranged spouse. The first wife's customary right therefore stood, distinguishable from Samuel Onindo Wambi where conduct extinguished the burial right.
Whether non-expert elderly witnesses could testify on Luo custom
The learned judge correctly accepted the testimony of aged witnesses as a useful guide to Luo custom, while acknowledging they were not experts under section 48 of the Evidence Act, given that neither party called an expert or cited texts on Luo custom
Section 51 of the Evidence Act requires evidence of custom, and Nyariba Nyankomba says experts versed in custom should be summoned. However, neither party called an expert or cited texts such as Paul Mboya's Luo Kitgi gi Timbegi. Faced with that lack of adequate resources, the judge's approach of accepting the testimony of witnesses aged 82 and 88 as persons versed in the custom through prolonged use, though not technical experts, was rational and cannot be faulted.
Correction of the erroneous reference to 'Kudha' as the matrimonial home
The reference to Kudha as the deceased's matrimonial home was an obvious clerical error correctable under the slip rule; the judge intended to refer to parcel No. Siaya/Ohia Malo/4240 at Nguka village where Patrisia's home was established
Both parties agreed that Kudha was the ancestral home, not the matrimonial home, and that the judge erred. Applying the principles in Sanitam Services and Fredrick Otieno Outa that the slip rule permits correction of obvious errors that cannot generate controversy or change the substance of a judgment, the Court corrected the description to refer to Nguka village. This did not alter the substance or intention of the High Court judgment.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered, or the decision is perverse
- The wishes of the deceased as to burial, though not binding, must so far as possible be given effect so long as they are not contrary to custom or general law or policy
- A person's conduct towards a deceased person while alive can extinguish that person's right to bury the deceased
- The slip rule permits only correction of obvious errors apparent on the face of a judgment and confers no power to alter the substance of the judgment
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear its own costs
- 3.Correction under the slip rule of the reference to 'Kudha' as the matrimonial home, the intended reference being parcel No. Siaya/Ohia Malo/4240 at Nguka village
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Siaya
- Jurisdiction invoked
- Second appeal under section 72(1) of the Civil Procedure Act, confining the Court to matters of law
Relief refused
#Appellants' claim that Matilda had the right to bury the deceased at Ongielo village
The divorce was never concluded for want of a decree absolute; Patrisia remained first wife and her conduct toward the deceased did not extinguish her right
Costs
Each party shall bear 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.
In burial disputes, the two questions that will always arise are, who has the right to bury the deceased and the place of burial…
We need not belabor the point that the learned judge rightly found that the divorce process having been incomplete, resulted in the conclusion that Patrisia did retain her position as 1st wife of the deceased.
the favourite wife syndrome may dance itself lame during the lifetime of the source of such deep affection and the object of such affection, but in death, the light dims; and rank and file principle takes prominence.
Ultimately, the outcome is that there is no basis upon which to interfere with the learned judge’s decision, and this appeal is dismissed. Each party shall bear its own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kudha & 2 others v Adhola & another (Civil Appeal E220 of 2024) [2025] KECA 824 (KLR)", Case Analysis (2025). Court of Appeal at Kisumu (burial dispute second appeal) - not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/824/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.