ACW v JW & 5 others (Environment and Land Appeal E007 of 2023) [2025] KEELC 5445 (KLR)
The bottom line
#A Kenyan court confirmed children may bury their mother on her matrimonial land because an unproven clan custom cannot defeat her property rights.
What this practically means
#Executive summary
#Key legal issues
#Scope of the dispute before the trial court
The dispute was not about who should bury the deceased but where she should be buried; had it been the former it would be a succession matter
The plaint sought an injunction restraining burial on the suit land. The trial magistrate framed the sole issue as which of two parcels the deceased should be buried on. The Court held ground one of the appeal, which mischaracterised the dispute as being about who should bury the deceased, was misconceived and dismissed it.
Proof of the alleged Baburi-Bakhayo customary bar on burial
The custom was not proved; counsel cannot establish custom through submissions, and the trial magistrate rightly disregarded it
The Appellant never testified about the clan custom; it surfaced only in counsel's submissions. Since submissions are not evidence and no expert, scholarly writing or decided case was tendered, there was no properly proved customary law barring burial on the suit land.
The deceased's interest in the suit land as matrimonial property
The suit land was the deceased's matrimonial home; absent divorce she retained an interest and could properly be buried there
The Appellant admitted the deceased was his second wife with a house on the suit land where the Respondents were born and raised and dowry paid. Having cohabited there, it became their matrimonial home under Section 6 of the Matrimonial Property Act. Any wish to relocate her should have been effected during her lifetime.
Distinguishing Oganga v Oranga
Oganga is distinguishable because the Respondents here claim no interest in the Appellant's land, only the right to bury their mother on her matrimonial home
Munyao Sila J had castigated children for harassing their father over his property. Here the Respondents make no claim to the land itself; seeking to bury their mother where she lived and raised them is not shameful or abominable conduct.
Mootness of the appeal
The appeal appeared moot because the deceased had already been interred on the suit land, but the Court considered it on its merits
Counsel for the Appellant conceded the Respondents had interred their mother's remains on the suit land. The Court observed the appeal was therefore moot but nonetheless determined it since it was pending before the Court.
Legal principles established
#- On a first appeal the court must re-consider and re-evaluate the evidence and draw its own conclusions, giving allowance for not having seen or heard the witnesses
- Customary law must be proved by expert evidence, scholarly writings or decided cases, and cannot be established through counsel's submissions from the bar
- A wife who has not been divorced retains an interest in matrimonial property notwithstanding long separation, and may be buried there
Court orders
#- 1.The appeal is dismissed
- 2.The parties shall meet their own costs both in the appeal and in the Court below
- On appeal from
- Chief Magistrate's Court Busia
- not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court appeals from subordinate courts); no specific provision quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ACW v JW & 5 others (Environment and Land Appeal E007 of 2023) [2025] KEELC 5445 (KLR)", Case Analysis (2025). Busia ELC Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5445/eng@2025-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.