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ELCDismissedPlaint dated 7th February, 2020 (suit number not stated in the judgment)· [2020] KEELC 2993 (KLR)

Agnes Nthambi Kasyoka & 3 others v Naomi Mumbua Muli & another [2020] KEELC 2993 (KLR)

High Court of Kenya at Machakos
24 April 2020
6,666 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first-instance burial dispute over the body of David Kiamba Muli, who died on 26th January, 2020 leaving two wives: the 1st Plaintiff, married under Kamba customary law in 1987/1988, and the 2nd Defendant, who lived with the deceased from 2011 and formalised her marriage in 2016. The Plaintiffs sought to bury the deceased on Plot No. 1498, Masinga/Kangonde, claiming it was the matrimonial home of the first family, while the Defendants asserted the deceased's matrimonial home was the Matuu property (Plot No. 1125) and that his wish was to be buried there. The court found the deceased and the 1st Plaintiff had been estranged since about 2010/2011, as evidenced by the deceased's Divorce Petition (Kithimani PMCC Divorce Case No. 8 of 2016), the 1st Plaintiff's Cross-Petition, and the deceased's demolition of the matrimonial house on Plot 1498 in December 2019. Photographic evidence from a court-appointed photographer showed no home existed on Plot 1498, and the court expressly found the Plaintiffs lied on oath in claiming to reside there. Applying the principles in Neema Mulwa vs. Joyce Mwango and Lilian Waithera Mwangi vs. Salome Mukami Mugo, the court held that marriage alone does not confer the right to bury; a spouse who abandoned the deceased cannot claim priority, and the 2nd Defendant, who nursed the deceased through his illness, had the final say on the burial. The absence of title to Plot 1125 was held immaterial absent objection from the seller. The court dismissed the Plaint, ordered the body released to the 2nd Defendant for burial on Plot No. 1125, Matuu (subject to the Public Health Act), directed the Plaintiffs to pay the accrued mortuary charges and the Defendants' costs.

Key legal issues

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01

Whether the 1st Plaintiff, as first wife, had the sole right to bury the deceased on Plot No. 1498 under Kamba Customary Law

Holding

No. Marriage alone does not determine the right to bury; a spouse who abandoned the deceased loses priority, and the spouse who cared for him has the final say on the burial site

Reasoning

The court found as fact that the deceased and the 1st Plaintiff had been estranged since about 2010/2011, evidenced by the Divorce Petition and Cross-Petition and by the deceased's demolition of the matrimonial house on Plot 1498. The 2nd Defendant cared for the ailing deceased for nine years. Applying customary-law authority, the court held that a married person abandoned by a spouse may choose who cares for him and buries him, and that burial on ancestral land is not mandatory for the Kamba.

p. 7
02

Whether the deceased's expressed wish to be buried at the Matuu property should prevail

Holding

Yes. The deceased's wish, though not binding, must be given effect so far as possible; the court accepted he wished to be buried at the Matuu property where he lived and worked

Reasoning

The deceased expressed his wish to his uncle (DW2) and, per the 2nd Defendant, told her he wished to be buried at Matuu. The court found the only wife 'close' to the deceased was the 2nd Defendant, who could authoritatively speak to his wishes, consistent with Lilian Waithera Mwangi vs. Salome Mukami Mugo on the priority of a close spouse.

p. 6
03

Whether lack of title to the Matuu property (Plot 1125) barred burial there

Holding

No. The absence of a title deed was immaterial, especially absent objection from the seller of the land

Reasoning

Plaintiffs' counsel argued Plot 1125 was never transferred to the deceased since the owner died before issuing title, and that a Succession Cause was pending. The court held the title question was 'neither here or there' because the deceased had purchased the land, built and lived there, and the seller raised no objection to the burial.

p. 7
04

Credibility of the Plaintiffs' claim that they all lived on Plot No. 1498

Holding

The court found the Plaintiffs lied on oath; photographs showed only a disused store with one bed, not a matrimonial home

Reasoning

Photographs from a court-appointed photographer showed the three-bedroomed matrimonial home had been demolished in December 2019, leaving a small disused structure with a single bed and no electricity. The court held that four adult Plaintiffs of means could not all live in that structure, and that the funeral committee's meetings and money handover on the Matuu property corroborated that the deceased's home was at Matuu.

p. 6

Legal principles established

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  • The wishes of the deceased, though not binding, must be given effect so far as is possible
  • A spouse who has been abandoned by the deceased cannot claim priority to bury him; the spouse who cared for the deceased has the final say on the burial
  • It is not mandatory for a person from the Kamba community to be buried on ancestral land
  • Ownership or title to the burial site is immaterial where there is no objection from the seller

Court orders

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  1. 1.The Plaintiffs' Plaint dated 7th February, 2020 is dismissed
  2. 2.The body of the late David Kiamba Muli to be released to the 2nd Defendant, Winrose Ndinda Kiamba, for burial on a portion of land known as Plot No. 1125, Matuu or on any other property that the 2nd Defendant may deem appropriate subject to compliance with the Public Health Act or any other applicable law or regulations
  3. 3.The Plaintiffs to pay the mortuary charges which have accrued since 7th February, 2020 until the date of the Judgment
  4. 4.The Plaintiffs to pay the costs of the suit

Authorities

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Legislation

  • Public Health Actnot specified

Cases cited (2)

  • Lilian Waithera Mwangi vs. Salome Mukami Mugo
    (2011) eKLR
  • Neema Mulwa vs. Joyce Mwango
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court over the tort/burial dispute; no specific constitutional or statutory provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agnes Nthambi Kasyoka & 3 others v Naomi Mumbua Muli & another [2020] KEELC 2993 (KLR)", Case Analysis (2020). Plaint dated 7th February, 2020 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2993/eng@2020-04-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.