Matunda v Wepukhulu & 2 others (Civil Case 424 of 2022) [2025] KEMC 389 (KLR)

5. In 1992, the deceased married Mary Namachanja Wauyo (in this judgment referred to as ‘Mary’ ) from the Ababambo clan. They established their home in Lwandanyi village within Bungoma County. 6. It is also common ground that sometime in 2005, Mary invited her uncle Joseph Kimanyorio alias Wyclifie Manyorio (in this judgment referred to as ‘Manyorio’) to stay with her in her Lwandanyi home. Manyorio heeded the invitation and went to stay with Mary in Lwandanyi. 7. Manyorio and the Plaintifi reportedly got married and stayed together in Lwandanyi. They were blessed with several children. They stayed together until the year 2006 when Manyorio left Lwandanyi for an unknown place after Mary’s death. The Plaintifi remained in Lwandanyi after Manyorio’s departure. 8. Mary was laid to rest in her Lwandanyi home. Mary’s mother Mayuba Chestek Wauyo was also reportedly laid to rest at Mary’s home in Lwandanyi. 9. Sometime after Manyorio had left Lwandanyi, the deceased allegedly married the Plaintifi under the Tugen and Bukusu customs. The alleged marriage was blessed with two children; Leonard Wepukhulu and Cecilia Wepukhulu. 10. On 29th January 2025 the deceased was attacked at his Khalaba A home by unknown assailants. The unknown assailants infiicted on him fatal injuries that led to his death on 01st February 2025 while receiving treatment at Lifecare Hospital, Bungoma. 11. The deceased’s death resulted in the burial dispute herein with the Plaintifi and the deceased’s Abakunga clan demanding that the deceased be buried in his Lwandanyi home in accordance with the wishes that the deceased had allegedly expressed during his lifetime as set out in the will that the deceased reportedly executed on 18th May 2024. 12. The Plaintifi also argued that the deceased could not be buried in his Khalaba ‘A’ home since he had died under questionable circumstances while in that home and that abominable acts had been performed by the 1st Defendant and her son in that home. 13. The Defendants and the Ababambo clan on the other hand demanded that the deceased be buried in his 1st wife’s Khalaba ‘A’ village home in accordance with Bukusu customs. They also argued that burying the deceased in Lwandanyi where his mother-in-law was buried would be contrary to Bukusu customs. 14. It is against this backdrop that the Plaintifi moved this court vide an amended Plaint dated 12th March 2025 praying for judgment against the Defendants jointly and severally for:An order that the remains of the late Richard Wepukhulu Wanyonyi be released to the Plaintifi for burial at his home in Lwandanyi village Bungoma West Sub-County as per the wish of the deceased in his written will dated 18th May 2024 An order in terms of paragraphs 7(a) and 7(b) above in the amended Plaint Cost of the suit Any other relief this honourable court may deem fit to grant 15. The Defendants entered appearance and thereafter filed an amended Defence and Counterclaim dated 16th March 2025 praying for the following orders:The Plaintifi’s case be dismissed with costs https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 2

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An order of permanent injunction restraining the Plaintifi, her servants, agents and/or any other person from preventing and/or interfering with the burial of the deceased at Khalaba ‘A’ village Kshs. 350,400/= being reasonable funeral expenses incurred as a result of halting the burial Interest Costs of the suit 16. On 06th March 2025, this court directed the parties herein to engage and have this matter settled out of court. The out-of-court negotiations collapsed hence this matter proceeded to a full hearing. 17. The summary of evidence led before this court by the parties herein was as set out hereunder. Plaintifi ’s Case 18. The Plaintifi called four (4) witnesses to prove their case. 19. PW1 Jackline Chebet Matunda adopted her witness statement dated 12th March 2025 as her evidence in chief. She urged this court to release the deceased’s body to her for burial in Lwandanyi per the deceased’s alleged written will dated 18th May 2024. 20. She admitted in cross-examination that at one time she cohabited with Manyorio from 2006 leading to them bringing forth six children. She added that she cohabited with Manyorio from 1993 until 02nd November 2021. 21. She also stated that she got married to the deceased after separating from Manyorio and that her clansmen received her dowry from the deceased. She denied being related to Mary. 22. Further, she stated that the deceased told her and Ham (PW2) on diverse occasions that he should be buried in Lwandanyi. 23. She admitted that prior to his death, the deceased used to stay in his homes in Khalaba ‘A’ and Lwandanyi interchangeably. 24. PW2 Ham Kisache Wangusi is a retired civil servant and the deceased’s neighbour in Lwandanyi. He adopted his witness statement dated 12th March 2025 as his evidence in chief. 25. His testimony was that in mid-May 2024 he accompanied the deceased to Momanyi & Company Advocates ofice situated on the ground fioor of the Co-operative Bank building in Kakamega when the deceased requested him to attest the deceased’s will dated 18th May 2024. 26. He added that by the time they left Lwandanyi for Kakamega, the deceased had a handwritten will. This handwritten will was reportedly typed by a female advocate known to him as Momanyi in Kakamega. He further stated that Momanyi advocate also attested the deceased’s will. 27. He conceded that on 20th February 2025 he attended a meeting convened by the deceased’s family in Lwandanyi but did not disclose the existence of the deceased’s will. 28. PW3 Simon Sunguti Simiyu is the chair of the Abakunga clan in East Africa. He has served as a chair of the Abakunga clan for over six (6) years. He adopted his witness statement dated 12th March 2025 as his evidence in chief. 29. He confirmed having held burial and funeral meetings in the deceased’s homes. He produced the Abakunga clan meeting minutes dated 05th March 2025 as Pexh.2. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 3

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30. It was also his testimony that there was a time the 1st Defendant complained to him that the deceased had bequeathed his plot in Ndengelwa to her daughter – in – law when the deceased told him that he had prepared a will on distribution of his property. He added that the deceased also told him that he wanted to be buried in Lwandanyi since he lacked peace in his first wife’s home. 31. He also stated that he was well-versed in his clan’s culture. He stated that under their clan’s culture, a polygamous man is ordinarily buried in his first wife’s home but if such a polygamous man states otherwise in his will, the clan is obligated to honour those wishes. He added that it was not an abomination in their clan for a man to be buried in the same parcel of land with their mother-in-law. 32. In cross-examination he stated that there was a time the deceased told him that he had difierences with the 1st Defendant. He added that under Abakunga culture in particular and Bukusu culture in general a man is permitted to marry his aunt. He also stated only the Abakunga culture should be followed in making a determination on the deceased’s place of burial. 33. He produced the dowry agreement between the Abakunga clan and the Tugen community as Pexh.3. 34. PW4 Philip Manyoni Isaiah is an advocate at Momanyi and Company Advocates, Kakamega. He produced the deceased’s will dated 18th May 2024 (Pexh.1) on behalf of Momanyi, advocate who was reportedly engaged in Vihiga Law Courts. 35. He stated that there are three (3) male advocates in their law firm namely: Momanyi Birundu Abel, Kephas Oruti and him. He added that their law firm is situated at Kenya Commercial Bank Building, 1st Floor in Kakamega and that the firm has been on that building for over twenty (20) years. 36. He added that the deceased presented an already typed will to Mr. Momanyi for attestation by PW2 and Mr. Momanyi. He further stated that Mr. Momanyi charged Kshs. 5,000/= for the attestation but did not issue the deceased with a receipt since the payment was reportedly a miscellaneous income. 37. He concluded his testimony by stating their law firm’s secretary handed over a copy of the will herein to the Plaintifi’s advocate’s representative. Defendants’ Case 38. The Defendants called six (6) witnesses to prove their case. 39. DW1 Fredrick Wafula Ngichawa is an eighty-nine (89) years old Bukusu elder from the Abakangala clan. He stated that he has been well versed in Bukusu customs since the 1950s during his circumcision. He added that he testified in court on Bukusu customs and that he has solved several burial disputes in the past. 40. He adopted his witness statement dated 16th March 2025 as his evidence in chief. 41. His testimony was that a polygamous Bukusu man is usually buried in his first wife’s home. He added that under Bukusu customs, a man can not be buried in the same parcel of land where the man’s mother–in–law was buried. He further stated that a Bukusu man can not marry their aunt hence an aunt (the Plaintifi) can not purport to be the deceased’s wife capable of burying the deceased. He added that a marriage between a man and his aunt is an abomination under Bukusu customs. 42. In cross-examination, he stated that he knew the customs of all the Bukusu clans. He listed the six major Bukusu clans as follows: Basirikwa, Bakikai, Bamwalie, Banyala, Bamalaba, and Nabayi. He stated that the Abakunga and the Abakangala clans traced their origin from the Bakikai major clan. He reiterated that the Bukusu customs did not vary from one clan to another. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 4

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43. It was his further testimony that where a Bukusu man states in his will about his place of burial, that wish is only followed if the said wish is in accordance with Bukusu customs. 44. He concluded his testimony by stating that where an abomination occurs in a man’s home, nothing stops a man from being buried in that home before the cleansing of the abomination is conducted. 45. DW2 Maneah Wepukhulu Nang’unda is the deceased’s 1st wife. They were blessed with fifteen (15) children. She relied on her witness statement dated 16th March 2025 as her evidence in chief. She produced a letter dated 18th February 2025 from her area assistant chief (Dexh.1), St. Mary’s Catholic church Kibabii’s marriage register extract (Dexh.2), and minutes of the funeral meetings (Dexh.5) to support her case. 46. Her testimony was that she was married to the deceased in 1966 at Kibabii Catholic Church and that their marriage was monogamous. She added that the Plaintifi was a wife to Manyorio who was Mary’s uncle. 47. She added that she was entitled to bury the deceased in their Khalaba home since she was the deceased’s only surviving wife. She added that her husband having married through the catholic church could not become polygamous. 48. In cross-examination, she stated that the deceased was stabbed on 28th February 2025 while in her house leading to his death. She denied having any difierences with the deceased prior to his death. 49. She also stated that her family had incurred additional funeral expenses as a result of the instant case filed by the Plaintifi. She questioned the validity of the alleged deceased’s will produced by the Plaintifi herein. 50. DW3 Roselyne Mukhwana Wepukhulu the 3rd Defendant herein is the deceased’s eldest child. She adopted her witness statement dated 10th March 2025 as her evidence in chief. 51. Her testimony was that the deceased ought to be buried in their ancestral land in Khalaba since the Lwandanyi home belonged to her step mother one Mary Namachanja. She added that the Abakunga clan had not consulted the deceased’s family in deciding that the deceased be buried in Lwandanyi. 52. In cross-examination, she stated that she knew the Plaintifi as their grandfather’s spouse. Whereas she acknowledged that the deceased had fathered two (2) children with the Plaintifi, she stated that the Plaintifi was never married to the deceased. She added that the Plaintifi had been married to Mary Namachanja’s uncle. 53. She questioned the validity of the will allegedly prepared by the deceased. She denied the existence of a land dispute between her mother and the deceased prior to the deceased’s death. 54. She added that funeral and burial expenses ought to be met by whoever stopped the burial preparations. 55. DW4 John Nyongesa Wahuyo adopted his witness statement herein as his evidence in chief. He traced his origin to the Ababambo clan. 56. His testimony was that the deceased had been married to his sister one Mary Namachanja. He added that her sister died in 2006 when she was buried at the deceased’s home in Lwandanyi. 57. He also stated that the Plaintifi had been married to his uncle one Joseph Kimanyoria Chestek and that the couple had stayed in Mary’s home in Lwandanyi until 2006 when Joseph left to an unknown place. That being the case, he stated that under the Ababambo customs, the deceased could not marry https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 5

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the Plaintifi who was his aunt. He described such a marriage as an abomination under the Ababambo customs. 58. He further stated that since their mother (Mary’s mother) had been buried in the deceased’s parcel of land in Lwandanyi, the deceased could not be buried on the same parcel of land. 59. DW5 Vincent Maruti Khatete is the chairman of the Ababambo clan. He produced the Ababambo clan meeting minutes dated….(Dexh.3) as an exhibit. 60. His testimony was that under the Ababambo customs, the deceased could not be buried on his parcel of land in Lwandanyi since his mother in law had been buried there. He also added that the Plaintifi could not be recognized as the deceased’s wife since the Plaintifi was related to the deceased. 61. DW6 Kennedy Simiyu Machabe is a catering services service provider. He stated that on 26th February 2025, he approached the deceased’s family and ofiered to provide catering services during the deceased’s funeral. 62. He drew a budget and thereafter issued an invoice of Kshs. 95,000/= (Dexh.4) to the deceased’s family. He acknowledged receipt of Kshs. 45,000/= from Nancy Wepukhulu as part payment of the invoiced amount of Kshs. 95,000/=. He added that he issued Nancy with a receipt in acknowledgment of payment of Kshs. 45,000/=. Analysis and Determination 63. In determining this burial dispute, this court associates itself with the court’s sentiments in Calma vs Sesar 1992 106 FLR 446/452 wherein the court expressed itself as follows on resolving burial disputes: “The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the court resolves the argument in a practical way paying due regard to the need to have a dead body disposed of without reasonable delay, but with all proper respect and decency.” 64. On 20th March 2025, the parties herein consented to file their respective written submissions by midday of 24th March 2025. As at 1600hrs of 24th March 2025, the Defendants had not filed their written submissions. Only the Plaintifi filed their written submissions within the agreed-upon timelines. 65. This court has carefully considered the respective parties’ pleadings, written submissions filed and the authorities the parties herein have relied upon. The issues that commend to this court for determination are: What is the applicable law in determining this burial dispute Whether the will dated 18th May 2024 is valid Whether the Plaintifi is the deceased’s legal wife Whom should the deceased’s body be released to for burial Where should the deceased be buried Whether the Plaintifi should bear the funeral expenses and accrued mortuary expenses Who should bear the costs of this suit https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 6

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What is the Applicable Law in determining this burial dispute 66. It is well settled in this jurisdiction that there is no codified law that deals with burial disputes. In settling burial disputes, courts are guided by both case law and customs of the deceased. This is the legal position on burial disputes as held in in Virginia Edith Wambui Otieno vs. Ochieng’ Ougo & Anor. [1987] KLR 371 (hereinafter referred to as the SM Otieno Case). 67. The deceased was a member of the Abakunga clan of the Bukusu community hence subject to the Bukusu Customary Law. 68. Section 3(2) of the Judicature Act (CAP 8) permits courts to apply customary law where one or more of the parties is subject to it or afiected by it, provided that such customary law is not repugnant to justice and morality or inconsistent with any written law. In essence, the application of customary law is complementary to the applicable written laws and the Constitution (see Re Magodo Keya (Deceased) (2021) eKLR). 69. It is noteworthy that the place of customary law as the personal law of the people of Kenya is complementary to the relevant written laws and the Constitution, which is the supreme law. 70. This court is alive to the holding in the SM Otieno Case that there is no way in which an African citizen of Kenya can divest himself of the association with the tribe of his father if those customs are patrilineal. However, it is worth remembering that the decision in the SM Otieno case was rendered before the promulgation of the Constitution of Kenya, 2010. 71. Under article 32(4) of the Constitution a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. My reading of article 32(4) of the Constitution inclines me to find that there are instances when a person may choose not to be bound by the customs of their people through the exercise of their freedom of conscience, religion, belief, and opinion and thereby adopt difierent practices. 72. It is common ground that the deceased married the 1st Defendant on 28th September 1966 at St. Mary’s Catholic Church Kibabii under the African Christian Marriage and Divorce Act (repealed). Without doubt, the foregoing shows that the deceased and the 1st Defendant made a conscious decision to have their marriage governed by the said Act but not the Bukusu Customary Law. 73. In view of the foregoing, this court will be guided by Bukusu Customary Law, applicable written laws governing marriage in Kenya, and the Constitution of Kenya where applicable in determining this burial dispute. Whether the will dated 18th May 2014 is valid 74. The Plaintifi relied on the alleged deceased’s will herein to demonstrate that the deceased had given directions on his final resting place. The Defendants on the other hand questioned the authenticity and validity of that will. 75. The Defendants at paragraph 7A of their amended Defence and Counterclaim filed herein termed the will in question a forgery. However, the Defendants failed to plead the particulars of forgery. 76. The Defendants also went at great lengths in cross-examining PW2 and PW4 on the circumstances under which the alleged deceased’s will was executed and attested. 77. What this good gathered from the Defendants’ case was that the Defendants were inviting this court to find that the alleged deceased’s will herein was not valid. Should this court heed that invitation? https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 7

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78. This question has been answered in this jurisdiction through various cases. The Court of Appeal in Sakina Sote Kaittany & another v Mary Wamaitha [1995]eKLR stated as follows on this issue: “The judge declined to deal with the issue of the validity of the deceased’s will which had been challenged by Sakina and Mustafa Kibet. He held that that this is a matter which should be decided by the judge hearing the probate cause filed by Wamaitha. There can be no doubt that in taking this view, the judge was right. The Law of Succession Act (Cap 160) provides a special procedure for applications for grant of probate and for dealing with any challenges to such an application. It is therefore not open to any party to mount such a challenge otherwise than in accordance with the statutory procedure.”(Emphasis added) 79. Riechi J also added his voice to this issue in Wilberforce Mulamba Awinja v Concepta Nakhumicha [2019] eKLR by stating as follows: “Counsel for the appellant in her submissions appeared to challenge the validity of this will. In my opinion this is not the proper place to do so. This is a dispute of the place of burial of the deceased and not succession cause...” For the reasons above, this court declines the invitation to determine the validity or otherwise of the will herein. This court leaves such a determination to the probate court, if and when such a court will be moved appropriately by either party. Whether the Plaintifi is the deceased’s legal wife 80. The validity of a marriage is always a key issue in determining burial disputes. The validity of a marriage is a key issue in burial disputes because the principle of legal proximity demands that a deceased person is supposed to be buried by the person who was close to them during their lifetime. In matters involving a married deceased person, the general rule is that such a deceased person should be buried by their spouse unless there exist militating factors against that rule. 81. In Ruth Wanjiru Njoroge Vs. Jemimah Njeri Njoroge & Another [2004] eKLR, Ojwang J (as he then was) held thus: “In the Social Context prevailing in this country the person who is first in line of duty in relation to the burial of any deceased person is the one who is closest to deceased in legal terms. Generally the marital union will be found to be the focus of the closest chain of relationships touching on the deceased. And therefore, it is only natural that the one who can prove this fundamental proximity in law to the deceased, has the colour of right of burial, ahead of any other claimant.” 82. In John Omondi Oleng & Anor vs. Suefian Radal [2012] eKLR, Mabeya J held as follows on the responsibility of the surviving spouse to bury the dead spouse: “… when it comes to the disposal of the body of a married man or woman the spouse should play a leading role. It would be better if the relatives of the deceased can sit down and agree on how to give their loved one a dignified exit. When they fail to agree and approach the Court for solution, the Court has no option but to step in…There has to be somebody to bury a deceased person. In my view, a surviving spouse is the person with the greatest responsibility for laying to rest the remains of the deceased spouse…” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 8

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83. The Plaintifi argued that she was married to the deceased in the year 2008 after separating from Manyorio the same year. She added that the deceased paid her dowry in accordance with Tugen and Bukusu customs as evidenced by the dowry agreement dated 11th September 2021 (Pexh.1). 84. The Defendants’ case on the other hand was that at the time the Plaintifi was allegedly married by the deceased, the deceased was married to the 1st Defendant under the African Christian Marriage and Divorce Act (repealed). The Defendants relied on the Kibabii Catholic Church Marriage Register extract (Dexh.2). 85. It was also the Defendants’ case that the Plaintifi being the deceased’s aunt could not be married to the deceased since such a marriage was an abomination under Bukusu customs.DW1; an expert in Bukusu customs termed such a marriage as an abomination under Bukusu customs. PW2; the chair of the Abakunga clan on the other hand stated that the Bukusu customs allow a Bukusu man to marry their aunt. 86. The Defendants also disputed the assertion by the Plaintifi that the deceased paid her dowry. 87. Turning to the facts of this case, it is not disputed that the deceased and the 1st Defendant contracted a valid marriage under the African Christian Marriage and Divorce Act (repealed) at St. Mary’s Catholic Church, Kibabii on 28th September 1966. 88. No evidence was placed before this court to show that the marriage between the deceased and the 1st Defendant was dissolved. The marriage was still subsisting at the time of the deceased’s death. 89. This begs the question; Did the deceased possess the capacity to contract a polygamous marriage in 2008 when he allegedly married the Plaintifi? It is needless to state that a marriage under the African Christian Marriage and Divorce Act (the Act) is meant to be a Christian monogamous marriage. Parties to a marriage celebrated under the Act cannot contract another marriage during the lifetime of their respective spouses except where the marriage they contracted has been dissolved by death or by a valid judgment of divorce. 90. The Act also provides that where either of the parties to a marriage under the Act contracts another marriage during the subsistence of their marriage under the Act, the ofiender would be guilty of bigamy. In MVS v G&F (KLR) 313 the Court of Appeal held that an already married person under the Marriage Act, Cap 150 (repealed) could not enter into a marriage or promise to marry before a decree nisi or divorce has been granted. 91. In Joseis Wanjiru vs. Kabui Ndegwa Kabui & another [2014] eKLR, the Court of Appeal (Visram, Koome & Odek, JJ.A.) opined thus: The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties, by a long cohabitation or other circumstances evinced an intention of living together as husband and wife.(Emphasis added) 92. The foregoing shows that any marriage contracted by the deceased while his marriage with the 1st Defendant was subsisting was a nullity in law. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 9

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93. The Plaintifi’s counsel appeared to urge this court to ignore that infraction of the marriage law by finding that the Plaintifi was validly married to the deceased by dint of cohabitation and under Bukusu customs since the deceased allegedly paid the Plaintifi’s dowry. 94. It is the law that a presumption of law cannot be founded on an illegality. 95. The foregoing can be summarized simply; out of nothing comes out nothing. The Plaintifi cannot seek to benefit from her illegal conduct. 96. In the circumstances, this court declines to engage in an academic exercise of determining whether the deceased paid the Plaintifi’s dowry or whether the deceased and the Plaintifi can be presumed to have been married by dint of cohabitation. 97. It is against this background that this court returns a finding that the Plaintifi is not the deceased’s wife under the marriage laws. 98. Who should the deceased’s body be released for burial 99. In determining to whom the deceased’s body is to be released, courts are guided by the deceased’s customs and the doctrine of legal proximity. 100. According to Customary Law as held in a plethora of decisions including the SM Otieno case; Morris Odawa vs. Samuel Ochieng Auma [2019] eKLR; Edwin Otieno Obanjo vs. Martin Ondera Okumu [1996] eKLR; Michael Musau Kitivo vs. Maurice Ndambuki Kitivo [2008] KLR 119; Kandie & 2 others vs. Cherogony [2002] eKLR; and Salina Soote Rotich vs. Cheptoo et al [2010] eKLR, the deceased’s body is usually released to the person declared by the deceased’s clan. 101. The deceased’s Abakunga clan are is divided on who should the deceased’s body be released to for burial. Wheras the Abakunga clan oficials and other clan members resolved through their clan meeting minutes herein that the deceased’s body be released to the Plaintifi for burial in Lwandanyi, the 2nd and 3rd Defendants who are also members of the Abakunga clan, and the 1st Defendant urged this court to release the deceased’s body to them for burial in Khalaba ‘A’. 102. The doctrine of legal proximity on the other hand demands that the deceased’s body be released to the person who is closest to the deceased in legal terms. In SAN vs. GW (2020) eKLR, the Court of Appeal observed thus: “The third aspect of this dispute is that the law only recognizes the persons who are closest to the deceased to have the right to bury the deceased. Those persons have been identified as the spouse, children, parents and siblings, in that order. The other consideration is that the person claiming the right to bury the deceased must be one who is demonstrated to have been close to him or her during his or her lifetime.” 103. In the instant case, we have already held that the marriage between the Plaintifi and the deceased was a nullity. The deceased’s body can not be released to a person who does not enjoy legal proximity with the deceased. The Plaintifi is thus precluded from the list of persons close to the deceased under the law. 104. The Plaintifi by implication tried to blame the Defendants’ for the deceased’s tragic death. The Plaintifi also alleged that the deceased had difierences with the 1st Defendant over a plot that the deceased bequeathed to his daughter-in-law. All these allegations were aimed at proving that the deceased had a strained relationship with the Defendants hence the Defendants did not deserve to receive the deceased’s body for burial since they were not close to the deceased. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 10

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105. Therefore, the allegations above remained as such, allegations. 106. The evidence on record is abundantly clear that the deceased had not abandoned his 1st family. It is common ground that the deceased used to shuttle between Lwandanyi and Khalaba A. The deceased must have enjoyed living in both homes. 107. If there existed any difierences between the deceased and the 1st Defendant or the other Defendants, that was simply a result of the ordinary disputes or wear and tear of marriage life and family life. 108. The upshot of the foregoing is that this court directs Lifecare Hospital Mortuary, Bungoma to release the deceased’s body to the Defendants jointly and severally for interment. Where should the deceased be buried 109. In M’imanene M’rutere vs. Lewis Kirimi & 2 others, Civil Appeal No. 20 of 2018 [2018] eKLR) it was held that the place of burial of a person is closely linked to three things: the person’s wishes, the duty imposed on those closely related to the deceased during his lifetime to bury him and whether the deceased had established a home. Additionally, the custom to which the deceased is subject comes into play. 110. The Plaintifi sought to rely on the alleged deceased’s will herein (Pexh. 2), the minutes of the Abakunga clan meeting (Pexh.3) and the expert evidence by PW3 to urge this court to find that the deceased should be buried in Lwandanyi. PW3’s evidence was that amongst the Abakunga clan of the Bukusu community, the clan is obligated to follow the wishes of the deceased on the place of burial even in situations where those wishes were contrary to the Bukusu customs. 111. DW1 on the other hand stated that under a Bukusu customs a polygamous man is supposed to be buried in his first wife’s home. He added that the deceased’s wishes on his place of burial can not contradict Bukusu customs, and that the deceased’s clan is obligated to follow Bukusu customs not the deceased’s wishes on the place of burial. 112. The arguments above by PW3 and DW1 were made on the premise that the deceased was a polygamous man. This court has already made a finding that the deceased was only married to the 1st Defendant. Therefore, the debate about the debate about the deceased being buried in the 1st home or the 2nd home on the basis of marriage is moot. 113. Consequently, this court will proceed to determine whether the deceased’s wishes on his place of burial are ascertainable, and whether if those ascertained wishes should be followed even if they contradict the deceased’s customs. 114. The Plaintifi placed before this court a will allegedly prepared by the deceased setting out the place that the deceased wished to be buried in. 115. The evidence on record shows that PW2 and PW4 who sought to prove the existence of the deceased’s will led contradictory evidence on the circumstances under which the will in question was executed and attested. Further, the evidence that the deceased told PW1 and PW2 on several occasions that he wished to be buried in Lwandanyi where he enjoyed peace was not substantiated to the required standards. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 11

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116. In any event, courts are encouraged to overlook the wishes of the deceased in an unproved will in determining a burial dispute. This position of law was aptly captured by the Court of Appeal in Anne Nyathira v Samuel Mungai Mucheru & 3 others [2016] eKLR when the court stated as follows: ‘In our opinion disregarding the wishes of the deceased in an unproven will was the correct approach as this dispute was not a P&A matter. …’ 117. The foregoing shows that the deceased’s alleged will on record which is contested and unproven cannot be used to ascertain the deceased’s wishes on his place of burial. 118. Be that as it may, even if this court had found that the deceased was a polygamous man and that the deceased wishes to be buried in Lwandanyi could be ascertained, could the deceased be buried in Lwandanyi? 119. PW3 argued that under the Abakunga customs, the clan is obligated to follow the wishes of the deceased on the deceased’s choice of place of burial even in circumstances where those wishes difier with the deceased’s clan’s customs. However, he conceded that generally speaking, a polygamous man from the Abakunga clan is supposed to be buried in his 1st wife’s home. 120. DW1 on the other hand stated that a polygamous Bukusu man is buried in his 1st wife’s home regardless of the deceased’s wishes on the place of his burial. 121. The foregoing shows that the two experts' position on the Bukusu customs on where a deceased should be buried in the face of wishes in a will was at variance. 122. This court is not bound to accept expert evidence as it is. The court can disregard expert evidence for good reason. In the face of the contradictory expert evidence on Bukusu customs, the court is required to determine who among the experts was believeable, and then form its own opinion on the issues that the experts sought to prove. 123. PW3 chaired the Abakunga clan meeting that resolved that the deceased should be buried in Lwandanyi. PW3 astounded this court when he stated that a Bukusu man is permitted to marry their aunt yet it is a matter of public notoriety that is well documented in Eugine Cortran’s Restatement of African Law; The Law of Marriage and Divorce Volume 1 that a Luhyia man cannot marry their aunt. PW3 was also the executor of the deceased’s alleged will produced before this court by the Plaintifi to prove that the deceased should be buried in Lwandanyi. 124. The above shows that PW3 was an interested party in this matter who could not give this court an independent expert opinion on Bukusu customs. 125. This court had the benefit of observing DW1’s demeanour during his testimony. He is an eighty-nine (89) year-old man from the Abakangala clan of the Bukusu community clan that did not have any interest in this burial dispute. His testimony on Bukusu customs was in line with the well-documented Bukusu customs on marriage and burial of a polygamous man. He was a credible witness. 126. In view of the above this court find’s that the correct position on the burial of a Bukusu polygamous man is that such a man should be buried in his first wife’s home, and that where a man wills against his customs, the wishes contrary to customs must be disregarded as espoused by DW1. 127. The position taken by DW1 on the deceased’s place of burial found favour in several court decisions. In Samuel Mungai Mucheru & 3 others v Anne Nyathira [2014] eKLR the court held; ‘However, it has been stated that there is no property in a dead body to be disposed of by the testator at will. Whatever wishes the testator expresses in his will are not binding on the https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 12

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family. This position was stated by Law JA in Apeli vs. Buluku [2008] 1 KLR (G&F) 873, where he said that there cannot be property in a dead body and a person cannot dispose of his body by will. The wishes of the deceased, though not binding must be, so far as practicable be given efiect, so long as the same is not contrary to custom nor contrary to the general law or policy.’ (Emphasis added) 128. Kwach JA in Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi Court of Appeal civil appeal number 66 of 1984, held that an executor’s duty is to give efiect to the deceased’s wishes in relation to the disposition of his corpse as far as practicable. He is not bound to efiect those wishes if they are either impracticable or in confiict with the personal law. 129. The Plaintifi's counsel submitted that a person in exercise of their freedom of conscience under article 32 and 33 of the Constitution of Kenya 2010, can choose not to be bound by their customs. This argument found favour in In re Burial of Musa Magodo Keya (Deceased) [2021] eKLR where Achode J. (as she then was) departed from the holding in the SM Otieno case on the ground that the SM Otieno case was decided before promulgation of the Constitution of Kenya, 2010. 130. Whereas Achode J’s reasoning above is sound and progressive, a reading of the high court decisions on this issue on whether one can choose not to be bound by their customs shows that the holding in the Re Musa Magodo Keya case is a lone voice crying in the wilderness. 131. Be that as it may, the Court of Appeal decisions on this issue are unanimous that the deceased’s family is not bound to honour the deceased’s wishes on a place of burial if those wishes are contrary to the deceased’s personal law (seeSAN v GW [2020] eKLR and Pauline Ndete case (supra)) . 132. This court is bound by the doctrine of stare decisis. In Jasbir Singh Rai & 3 Others Vs. Tarlochan Singh & 4 Others, (2013) eKLR, the Supreme Court asserted that the rule of precedent promotes predictability, diminishes arbitrariness, and enhances fairness, by treating all cases alike, the doctrine of stare decisis holds that decisions of a higher court, unless distinguished or overruled, bear the quality of law, and bind all lower courts in similar or like case. 133. Njoki Ndungu, SCJ in Kidero & 5 Others –Vs- Waititu And Others, Supreme Court Petition No.18 of 2014 (consolidated with petition no. 20 of 2014), stated: “The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement aimed at enhancing certainty and predictability in the legal system.” 134. Given the foregoing, the correct position of the law in Kenya on whether the deceased’s wishes on place of burial should be honoured if in confiict with customs is that such wishes ought to be disregarded. 135. In Re Madogo (supra) it was stated that it is trite that the burial of a deceased person must be at a place where not only all parties are free to attend, but also where the ownership of the land is undisputed. 136. It is common ground that the land in Lwandanyi and Khalaba is owned by the deceased. The Defendants also indicated that the Plaintifi was welcome in Khalaba A if this court finds that the deceased should be buried in Khalaba A. 137. In the premises, this court is inclined to find that the deceased should be buried in his first wife’s home in Khalaba A. Who should bear the funeral expenses and mortuary expenses 138. The Defendants pleaded for reasonable funeral expenses of Kshs. 350,400/=. They led evidence from DW6 to prove this. The Plaintifi opposed this claim. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 13

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139. This court is of the considered view that both the Plaintifi and the Defendants are grieving over the loss of their loved one. It is also a no-brainer that the parties herein have been incurring expenses in attending to mourners during the pendency of this burial dispute. 140. In the circumstances, this court orders each party to bear their own funeral expenses that may have accrued during the pendency of this suit. 141. Regarding the mortuary charges/expenses accrued during the pendency of this burial dispute, this court orders that the Kshs. 60,000/= deposited in this court by the Plaintifi as security for mortuary expenses be transferred to Lifecare Hospital Mortuary, Bungoma for payment of the mortuary expenses that accrued during the pendency of this burial dispute. Any mortuary charges above Kshs. 60,000/=be paid by other members of the deceased’s family. Who should bear the costs of the suit and the counterclaim 142. This being a family dispute, and in order to rebuild already strained family relations, it is this court’s considered view that this is a proper case to depart from the general rule that costs follow the event. 143. Thus, this court orders each party to bear their costs of the suit and the counterclaim. What other orders commend to this court 144. Having ordered that the deceased’s remains be interred in Khalaba A, this court is minded to tamper justice with mercy. 145. The Plaintifi reasonably believed that the deceased was her husband. It is only fair that the Plaintifi and her two (2) children that she bore with the deceased be granted an opportunity to pay their last respects to the deceased at their home in Lwandanyi. 146. In the circumstances, this court orders that the deceased’s funeral procession from the Lifecare Hospital Mortuary, Bungoma makes a brief stopover at the deceased’s home in Lwandanyi for the Plaintifi and her two children to pay their last respects to the deceased. Disposition 147. The upshot of the foregoing is that the Plaintifi’s case is dismissed, and the Defendants’ Counterclaim partially succeeds in the following terms: The Plaintifi is not the deceased’s legal wife under the marriage laws 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 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 Plaintifi and her two children to pay their last respects to the deceased. The Plaintifi 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’. Each party to bear their funeral expenses incurred during the pendency of this burial dispute The Kshs. 60,000/= deposited in this court by the Plaintifi as security for mortuary expenses be transferred to Lifecare Hospital Mortuary, Bungoma for payment of the mortuary https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 14

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expenses that accrued during the pendency of this burial dispute. Any mortuary charges above Kshs. 60,000/=be paid by other members of the deceased’s family Each party to bear their costs of this suit and the counterclaim 148. It is so ordered. 149. In conclusion, the court would like to express appreciation to the learned counsel on record; Mr. Anwar and Mr. Masiga, for the efiort they put in this matter bearing in mind the strict timelines that this matter has been heard and determined. This court also thanks counsel for the research they undertook. Their authorities and submissions were of great assistance to the court. DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUNGOMA THIS 25TH DAY OF MARCH 2025. T. O. OMONO RESIDENT MAGISTRATE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/389/eng@2025-03-25 15

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