Carmelina Ngami Mburu v Mary Nduta & 1 other

4. On the succession element, the plaintiff who was not involved in the dispute originally is laying grounds for a succession case. There can be no property in a dead body that one can claim. The plaintiff seeks a declaration which would be proper in a succession suit where the status of widow will be dealt with. As I am not dealing with the Succession aspect, I make no findings on the prayer for declaration. 5. On the burial element, I shall deal with only those parts of the evidence that touches on the burial itself. I have to leave out the contradiction and the conflicting evidences. 6. The deceased, John Godhard Mburu, an Ex Provincial Commissioner and a businessman died on 27th October 1981 at Kenyatta National Hospital. He was in and out of the Hospital for a period of four months. His body was transferred from the hospital to the City Mortuary awaiting burial arrangements on the same day. On the 28th October 1981 there was a meeting between Mary Nduta and Taddeo Mwaura with his sons at the residence of Mary Nduta at Loresho where a suggestion of the date of the funeral was mentioned to be on the 7th November 1981. 7. There was another meeting to be held at Taddeo Mwaura’s home in Muranga with other members of the clan on 29th October 1981. When Mary Nduta went there for the meeting in the afternoon she found the meeting already over but she was informed by Taddeo Mwaura that the deceased was to be buried next to his father’s grave. They discussed about the deceased’s farm at Githunguri. Mary Nduta states that she was given to understand that since there was no permanent house at Githunguri, the deceased could not be buried there. It is at that time she raised the question of Mbaruk farm where they have a permanent house as an alternative and was told that the clan never considered it. The talk thereafter was not pleasant. Mary Nduta said that she made it clear to Taddeo Mwaura that she did not want her husband to be buried anywhere else except in his own land. That was the source of the dispute according to Mary Nduta. 8. There was another meeting on 3rd November 1981 which Mary Nduta did not attend. The clan members confirmed their meeting held on 29th October, 1981. According to Mary Nduta there was another meeting arranged to be held at her residence on 2nd November 1981 without her knowledge. There was also disagreement at that meeting. She states that she was told at that meeting that if she was not to follow the wishes of the clan, she could go ahead with her plans for burial at Mbaruk. 9. According to Taddeo Mwaura, the meeting of 28-10-81 arranged the burial to be on 7th November in Muranga next to his father ’s grave and that she agreed to that. It was at the meeting of 2nd November 1981 that Mary Nduta said that she had another thought that the deceased was to be buried at Mbaruk. Taddeo Mwaura told Mary Nduta to attend a clan meeting to be held on 3rd November 1981. Taddeo Mwaura had not met Carmelina Nduta by then. As far as the matter stood by then, the dispute of the burial was between Taddeo Mwaura and Mary Nduta. Carmelina Nduta who filed this action was not in the picture at all. I have not been informed whether she attended any of the meetings. All what I have been told is that on 2nd November 1981 she was in Nairobi because she was at the Mortuary. 10. This court has to be guided by African Customary Law in matters of this nature as provided by section 3(2) of the Judicature Act, (Chapter 8) and other decisions of the Court. In the past customarily, the responsibility for burial fell on the eldest son or in his absence on the brothers of the deceased. (See Restatement of African Law Vol 2 at page 9). The tendency these days is to have consultations. In those days even when dead bodies were being thrown to hyenas, as this court has been informed, women took no part. I have also been told that even in the present days, women do not take part except carrying flowers. That being so, there is no cause of the widows having a tug of war over the body of the deceased. The deceased has only one minor son by Mary Nduta. According to Kikuyu a house which has a boy is never disregarded. I have no doubt Taddeo Mwaura is aware of this and that is why he sought https://new.kenyalaw.org/akn/ke/judgment/kehc/1981/16/eng@1981-11-27 2

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consultation with Mary Nduta. Equally the same, Mary Nduta being aware of this she speaks on behalf of her son. 11. This dispute could have been cleared had the deceased expressed his wishes of where he was to be buried. In this case I cannot find anywhere in the pleadings where the deceased expressed his wish to be buried either at Mbaruk or at his brother’s farm. When the dispute arose on 29th October 1981, Mary Nduta in deciding that the body should be buried at Mbaruk relied on, firstly, it is a place where the deceased had a permanent dwelling house and secondly, it is a place where they buried one of their children. Paragraph 13 of her affidavit in support of the application reads: 13. That before the deceased died he had contemplated building a guest house at Kabati merely to enable our children to know where their father originally came from otherwise the deceased had decided to settle permanently at our home at Mbaruk farm in Nakuru and this would be the centre of all his operations and the ultimate place for his burial”. 12. The ultimate place for his burial is a mere presumption. It would have been so if there is no dispute as the one existing. For Mbaruk to be a centre of all operations is quite understandable. The deceased was an enterprising man, from Mombasa to Kakamega. Mbaruk is situated on the highway with all facilities for communications and for business social activities. As to his place of burial, it does not reveal to me as being where he would have expected to be buried. I do not accept the answer given by Father Mathew Mwangi in cross-examination that the deceased wished to be buried at Mbaruk as at the time of answering it, he was hard pressed with questions some accompanied by falseful tone. I consider the answer not voluntarily given. 13. The fact that the deceased and his wife and children were visiting Mbaruk farm particularly during the school holidays does not convince me. They could have gone to Mombasa or Kakamega where he has houses. The other reason given was that it is a place where one of their children aged 5 months was buried. This also is not important because nothing of significant can be attached to an infant child of about five months. The place is far away from where he originally came from and from where he wanted the children to remember as I shall comment later. It is away from his clan members. In my view this is not a suitable place for the deceased’s burial. 14. Turning to the other place which is a place selected by Taddeo Mwaura, it is where the grave of his father Joseph Ichahuria is. Taddeo Mwaura mainly gave evidence that before his father died, he had said that he, Taddeo Mwaura and the deceased will be buried next to him. Failure to comply with the wishes of their father, which I am told amount now to a curse, he will be affected by it. The other reason is that there is a permanent house there. He further states that when a house will be built on the deceased’s land they will transfer the remains of the deceased and make another grave yard there. The curse and the transfer of the remains later do not go side by side. 15. Dealing with the later part first, the witnesses on custom said that they have never heard of the transfer of the body, being exhumed to be buried elsewhere. What they have heard of is the transfer of soil from the ground where one is buried to be spread in the area where he wanted to be buried. If that would have been the only cause, then there would have been no difference if the deceased is buried at Mbaruk and then the remains to be transferred later. This court cannot solve this dispute that way. Several authorities have been sighted on this subject but such orders sighted were granted on good reasons. There can be no good reason for this court to order that the deceased be buried at Taddeo’s and then to be transferred. The Kikuyu custom has always been that once a person has died and buried his soul shall remain where he is buried undisturbed. To remove the remains where it has been interred under a court order is to disturb the dead man’s soul. https://new.kenyalaw.org/akn/ke/judgment/kehc/1981/16/eng@1981-11-27 3

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16. Coming back to the curse, these words are said to have been said long time ago. Carmelina Ngami said that she heard of them in the early days of their marriage when they were at Karatina. The step-sister, Flora Njeri Ichahuria, also said it was long time ago, Mary Nduta said that she has never heard of it. The Chairman of clan elders Godfrey Waweru Kiragu, in his evidence stated: "We agreed that he was to be buried close to his father’s grave. We decided so because they fenced that portion in Taddeo’s land ” “.... I attended his funeral. He was buried there because that is the place where Taddeo had built a house for him and it was also the place that John Mburu used to bring meat to him ” “.... He had expressed his wishes that because he loved his children he should be buried there. He also said that Taddeo and Mburu will be buried there”. 17. The same witness continued in his evidence in Chief and said: “The prepared grave is in the land of Taddeo Mwaura. John Mburu has a land in Githunguri Scheme. According to our customs we bury our people where we know that there is protection. We would wish the grave of the deceased to be protected. There is no protection in the other land at Githunguri”. 18. The same witness on re-examination said what was said by the deceased’s father’“^ was long time ago soon after the emergency”. 19. What is alleged to be a curse are words spoken more than ten years before the deceased’s father died. The allegation of a curse is in some way inconsistent with the above statements. At the time of his death, he was an old man. He was staying with his son at the P.C’s residence in Nairobi. He died at the P.C’s house and later taken to mortuary. Taddeo Mwaura does not accept this in his evidence but states that he died in the hospital. 20. While Joseph Ichahuria was staying with his son, he must have been meeting Mary Nduta and her children. These children must have been comforting the old man and he must have been happy. Usually old people are fond of the children of their sons and daughters. I think, if there could be any contemplated curse at all, this was the time it should have been repeated to enable Mary Nduta to hear it because it is her children who would be affected by it. There is no evidence that such a curse was mentioned when eulogies were spoken at the funeral or a mention of it could not have escaped the ears of those who attended. Carmelina Ngami was not there but Mary Nduta was there. She could have heard it. 21. At the end of the hearing, Mrs Khaminwa submitted: "To bury the deceased in the grave which is already prepared is a matter of convenience at this stage”. 22. In my considered view of the custom, I do not think there was a curse at all. The reference of a curse was for convenience in having the deceased buried in Taddeo Mwaura’s land. I do not consider where the grave is prepared to be a suitable place for the burial of the deceased either. 23. I now have to search from the evidence whether there could be any other possibilities of the deceased’s intention to be buried in Gaichanjiru among his clan members. I quite agree with Mrs Khaminwa that there is no expressed wish. The court will always try to enforce the wishes of the deceased. In the case of James Apeli and Another vs Prisca Buluku (Mrs) Court of Appeal Civil Appeal No 12 of 1979, the https://new.kenyalaw.org/akn/ke/judgment/kehc/1981/16/eng@1981-11-27 4

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court granted the order to exhume the remains of Simon Buluku from his brother’s land and to be buried in the land he had bought 10 miles away from the rest of his relatives. This was his expressed wish because he had no land of his own where he was born and grew up. It was also held in the same judgment that: "Even if he had not finally gone there in July, 1978, as the wife claims, it is crystal clear that it was his intention that Bungoma should be his permanent and final home”. 24. In the present case, the deceased has a 23-acre farm in Gaichanjiru in a scheme known as Githunguri which is 4 miles away from Taddeo Mwaura. The farm has coffee stores and also where servants stay. There is no other house there. This place was rejected by Taddeo Mwaura and the clan members because there is no permanent house and so there is no protection. 25. From the affidavit of Mary Nduta and her evidence and the evidence of Taddeo Mwaura, the deceased had the intention of putting up a coffee factory there. Mary Nduta confirms this and further adds that the deceased had repeated his intention over and over again of building a guest house there so that her children will always remember where their father came from. The children and their mother would come and mix up with the members of their clan and will be able to get to know each other well. The parties and even some of the witnesses agree that there are some stones there for this project. In my mind this could be an alternative place. Now that the father of the children is dead, I feel that there could never be any better monument for the children and friends to remember the deceased and where he was born and grew up than having the grave on this land. The land is within the clan land. I am told that the land comprises of the land inherited from his father, other pieces bought by him and others given to him by way of gifts by Taddeo Mwaura. If the deceased is buried there, this would meet with the approval of the clan as the deceased’s remains is within the clan land. I am assisted in arriving at this conclusion by Bishop Ceasar Gatimu who said that due to the Land Registration people prefer to be buried in their own land than anywhere else. As to the question of a house, this is not all that important and particularly when the matters have reached to the stage they are now in. A temporary house can be built there. Mary Nduta has stated that herself and the children would wish to have a house put up there according to the wish of the deceased, but that is in the future. 26. Mrs Khaminwa in her submission accepts that from the evidence on record relating to 23 acres farm and the intention of the deceased is a clear wish and the most recent wish of the deceased. This was the real cause of the disagreement which precipitated the institution of these applications. It is in my view that the only objection to the deceased being buried on his own land was the lack of a permanent house which I have ruled out. If there is a curse which Taddeo Mwaura would wish to avoid, he has to find ways of circumventing it. 27. In conclusion I order that the late John Godhard Mburu shall be buried in his farm of 23 acres at Githunguri Scheme in Kagunduini sub-location Gaichanjiru Location, Muranga, with all honours pertaining to his position. Mary Nduta said that the deceased did not wish his grave to be cemented, but this is a matter which should be avoided. 27. The body of the deceased will be delivered to a member of the family who will give a written undertaking to the court to remove the body from the City Mortuary to the Church and to the final resting place in his farm at Githunguri Scheme Gaichanjiru-Muranga for funeral on a day to be agreed by the parties. 28. As regards the costs, this is an interparties application. No party has succeeded or lost. Under the circumstances, each party will bear its own costs. DATE AND DELIVERED IN NAIROBI THIS 27TH DAY OF NOVEMBER 1981. https://new.kenyalaw.org/akn/ke/judgment/kehc/1981/16/eng@1981-11-27 5

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GACHUHI JUDGEE https://new.kenyalaw.org/akn/ke/judgment/kehc/1981/16/eng@1981-11-27 6

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