Ogeisia v Achoki & another (Environment and Land Case 98 of 2017) [2018] KEELC 4603 (KLR)
The bottom line
#A Kenyan court ruled a son must be buried at his homestead under Abagusii custom, despite his mother's registered land ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased should be buried on parcel 970 (allegedly allocated to him by the plaintiff) or on parcel 323 where he had his homestead
The deceased is to be buried on parcel 323 next to his house in accordance with Abagusii Customary Law
The court applied Abagusii Customary Law pursuant to Section 3(2) of the Judicature Act, finding both parties agreed a married man with a home is buried at his homestead. The deceased resided on parcel 323 for over 35 years where he built his matrimonial home. The plaintiff's claim of allocating parcel 970 was not manifested during the deceased's lifetime, appeared belated, and the court found the deceased held a beneficial interest in parcel 323 while the plaintiff held the land in trust for her children.
Whether the plaintiff, as registered proprietor, had an unfettered right to decide the burial site
No; her ownership rights are subject to her children's beneficiary interests
The court held that although the plaintiff was the registered owner of both parcels, the deceased as her son had a beneficiary interest, so she held the land in trust for herself and her children and could not exclude them from portions they occupied. However, the court expressly declined to determine ownership rights, confining itself to the burial question, which does not confer ownership rights.
Legal principles established
#- Courts are enjoined by Section 3(2) of the Judicature Act to be guided by African Customary Law in civil cases where a party is subject to or affected by the custom, so far as it is applicable and not repugnant to justice and morality.
- Under Abagusii Customary Law, a married man with a homestead is buried next to his house; only a person who dies without a house has an 'Egesamo' or 'Omucii' constructed for burial purposes.
- Ownership or distribution of land cannot be determined in the guise of a burial dispute; determining a burial site does not confer ownership rights over the land.
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.The deceased Samson Achoki Ogeisia is to be buried on land parcel West Mugirango/Bogichora/323 next to his house in accordance with Abagusii Customary Law
- 3.The court order issued on 25th April 2017 restraining the burial on parcel 323 is discharged and vacated
- 4.Each party to bear their own costs of the suit
- 5.No determination of ownership rights over parcels 323 and 970; the defendants' counterclaim succeeds only insofar as the burial place is concerned
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; Section 3(2) of the Judicature Act, Cap 8 on application of African Customary Law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogeisia v Achoki & another (Environment and Land Case 98 of 2017) [2018] KEELC 4603 (KLR)", Case Analysis (2018). null (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4603/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.