Matunda v Wepukhulu & 2 others (Civil Case 424 of 2022) [2025] KEMC 389 (KLR)
The bottom line
#A Bungoma court ruled a second wife could not bury her partner, holding his first statutory marriage still stood and burial follows custom.
What this practically means
#Executive summary
#Key legal issues
#Applicable law in burial disputes
No codified law governs burial disputes; courts are guided by case law and the customs of the deceased, with customary law applied subject to the Constitution and written law
Section 3(2) of the Judicature Act permits application of customary law where a party is subject to it, provided it is not repugnant to justice and morality. The court also noted that under article 32(4) a person may choose not to be bound by custom through freedom of conscience, and that the deceased's church marriage under the African Christian Marriage and Divorce Act showed a conscious choice to be governed by statute rather than Bukusu customary law.
Validity of the deceased's alleged will
The court declined to determine the will's validity, holding that challenges to a will must follow the Law of Succession Act probate procedure
Relying on Sakina Sote Kaittany, the court held that a burial dispute is not the proper forum to challenge a will; the Law of Succession Act provides a special procedure for probate matters. Courts are also encouraged to disregard the wishes of a deceased in an unproven will when resolving a burial dispute.
Whether the Plaintiff was the deceased's legal wife
The Plaintiff was not the deceased's legal wife; the alleged marriage was a nullity because the deceased's statutory monogamous marriage was subsisting
The deceased married the 1st Defendant under the African Christian Marriage and Divorce Act, a monogamous statute, and no dissolution was proved. A marriage contracted during its subsistence was a nullity, and a presumption of marriage cannot be founded on illegality - out of nothing comes nothing.
Release of the body and place of burial
The body be released to the Defendants and the deceased buried in his first wife's home at Khalaba 'A' per Bukusu custom; the alleged will and inconsistent expert evidence were disregarded
The court found PW3 not credible and interested, preferring DW1's evidence that a polygamous Bukusu man is buried in his first wife's home and that wishes contrary to custom must be disregarded. Bound by stare decisis and Court of Appeal authority, the court held the deceased's conflicting wishes ought to be disregarded, and the land ownership at Khalaba A was undisputed.
Funeral and mortuary expenses
Each party to bear its own funeral expenses; the Kshs. 60,000/= security deposit to be applied to mortuary expenses
Both parties were grieving and had incurred expenses during the pendency of the suit, so fairness dictated each bear its own funeral expenses. The security deposit held in court was directed to Lifecare Hospital Mortuary to settle accrued mortuary charges, with any excess borne by other family members.
Legal principles established
#- A person's wishes on place of burial that conflict with the deceased's personal law/custom ought to be disregarded
- There is no property in a dead body; a testator cannot dispose of his body by will
- The doctrine of legal proximity requires that a deceased's body be released to the spouse, children, parents and siblings in that order
- A marriage contracted while a statutory monogamous marriage is subsisting is a nullity
Court orders
#- 1.The Plaintiff is not the deceased's legal wife under the marriage laws
- 2.Lifecare Hospital Mortuary, Bungoma to release the deceased's body to the Defendants jointly and severally for burial in the 1st Defendant's home in Khalaba A
- 3.The deceased's funeral procession from the Lifecare Hospital Mortuary, Bungoma to make a brief stopover at the deceased's home in Lwandanyi for the Plaintiff and her two children to pay their last respects to the deceased
- 4.The Plaintiff and the two (2) children she bore with the deceased be involved in the deceased's funeral and burial arrangements; they are at liberty to attend the deceased's burial in Khalaba 'A'
- 5.Each party to bear their funeral expenses incurred during the pendency of this burial dispute
- 6.The Kshs. 60,000/= deposited in court by the Plaintiff as security for mortuary expenses be transferred to Lifecare Hospital Mortuary, Bungoma for payment of accrued mortuary expenses; any mortuary charges above Kshs. 60,000/= to be paid by other members of the deceased's family
- 7.Each party to bear their costs of this suit and the counterclaim
- Jurisdiction invoked
- Original jurisdiction over burial dispute; customary law applicable under section 3(2) of the Judicature Act (Cap 8)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matunda v Wepukhulu & 2 others (Civil Case 424 of 2022) [2025] KEMC 389 (KLR)", Case Analysis (2025). Civil Case No 424 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.