Momanyi v Makori & 4 others (Civil Case E228 of 2025) [2025] KEMC 136 (KLR)
The bottom line
#A Nakuru court confirmed a widow's right to bury her husband at their Nakuru home, rejecting his brothers' claim that Kisii custom required burial in Kisii.
What this practically means
#Executive summary
#Key legal issues
#Right to bury the deceased
All parties being relatives are entitled to participate in the burial; the plaintiff, as the widow who was always with the deceased, has the right to bury him
The court noted there is no property in a dead body and that the right to bury was not seriously disputed since all parties are relatives. Applying Kisii customary law as codified in the Bonareri case and the SAN v GW hierarchy, the plaintiff as spouse and sole caregiver was demonstrated to have been closest to the deceased, and no evidence rendered her undeserving of burying her husband.
Place of burial - Nakuru or Kisii
The deceased expressed no provable wish as to his resting place; burial to proceed at his Ngata, Nakuru matrimonial/retirement home in accordance with the plaintiff's right
Both sides claimed oral expressions by the deceased favouring their preferred location, but no evidence proved either. The court observed the deceased was a balanced man who raised his family in Nairobi, buried two children in Kisii, yet built and settled his nuclear family in a retirement home at Ngata, Nakuru. Absent proof of a house built per Gusii custom at the ancestral home, the widow's right and Article 45's protection of the nuclear family prevailed.
Applicability of Gusii customary law
Gusii customary law applies but does not compel burial at the ancestral home; Kisiis who acquire homes elsewhere are commonly buried there
Relying on Section 3(2) of the Judicature Act and the decisions of Maraga J in the Bonareri case and Ogola J in Onderi v Ontweka, the court took judicial notice that many Kisiis have settled away from Gusii land and are buried in their new homes. The lack of evidence that the Nakuru home was constructed per Gusii customs cut both ways, but did not defeat the plaintiff's right.
Orders against a non-party (Nyangena Mortuary)
No compelling order can issue against Nyangena Mortuary as it was not joined or heard
The plaintiff sought orders against the mortuary holding the body, but the mortuary was neither sued nor heard. The court held that no dispute or wrong had been attributed to it in the proceedings, and natural justice precluded binding a stranger to the suit.
Legal principles established
#- There is no property in a dead body, but effect should be given to a deceased's wishes as far as possible
- Under Kisii Customary Law, the widow or widower has a right to bury his or her deceased spouse, but that right is not absolute and the deceased's views and other circumstances may override it
- Where those legally closest to the deceased cannot agree on the place of burial, the court should intervene and direct the place of burial
- The persons closest to the deceased, in the order of spouse, children, parents and siblings, have the right to bury the deceased, provided they were close to him or her during his or her lifetime
- The nuclear family is the basic unit of the family recognised and protected under Article 45 of the Constitution and, absent special circumstances, has the right to bury their dead
Court orders
#- 1.The body of the deceased Benson Momanyi be released to the Plaintiff
- 2.The Plaintiff is hereby allowed to collect the body from the Defendants or wherever the body may be
- 3.A mandatory injunction be and is hereby issued directing the Defendants or whoever is the custodian of the deceased's body to release the body of Benson Momanyi to be laid at his matrimonial home in the parcel known as NJORO/NGATA BLOCK 2/5080 (KIROBON 'A') within Nakuru County, with a copy to be served upon the OCS Keroka Police Station for effective compliance
- 4.Each party to bear own costs
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a burial dispute; African customary law applicable under Section 3(2) of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Momanyi v Makori & 4 others (Civil Case E228 of 2025) [2025] KEMC 136 (KLR)", Case Analysis (2025). Civil Case No E228 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/136/eng@2025-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.