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about the Plaintiff’s father’s death that she was not going to bury a person who tormented her. 4. The deceased thereafter remarried Jackton Wamalwa (‘the Defendant’s father), with whom they stayed together in Nzoia Scheme of Likuyani Sub-County within Kakamega County. This marriage was blessed with several children, including the Plaintiff and Protas Wafula. Jackton Wamalwa later on died, leaving behind the deceased, who stayed at her second matrimonial home until 13 th January 2026, when she passed on aged 94 years after a long illness. 5. Protas Wafula then moved the deceased’s body to Kimini Cottage Hospital’s St. Michael Funeral Home for preservation pending funeral arrangements and subsequent interment. 6. Fearing that the Defendant and her siblings from Nzoia Scheme were going to bury the deceased at their Nzoia Scheme home, the Plaintiff moved this court vide a Plaint dated 20 th January 2026 praying for judgment against the Defendant for:(a) That this Honourable Court be pleased to grant an order of injunction against the Defendant from removing the body from St. Michael Kiminini Cortege (sic) and burying at Kiminini village (b)A declaration that the deceased Priscah Nasipwondi Wenani be buried Mukhweya within Chwele , Kabuchai Sub-County, on ancestral land (sic) (c) Costs the suit (d)Any other relief this Honourable Court may deem fit to grant 7. The Plaintiff pleaded that the deceased was his father’s first wife, with whom they were blessed with five children. He added that the deceased and his father later separated due to personal differences, leading to the deceased remarrying in Kitale to her late second husband. 8. It was the Plaintiff’s case that the deceased should be buried at her first husband’s home in Mukhweya in accordance with the Bukusu

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Customary Law, given that the marriage between the deceased and his late father was never dissolved. He added that his claim to have the deceased buried in Mukhweya was also based on the fact that his late father paid the deceased’s dowry per the Bukusu Customary Law. 9. The Defendant entered appearance and filed a Statement of Defence dated 26th January 2026. 10. She pleaded that the deceased was married to his late father, one Jackton Wamalwa, after divorcing the Plaintiff’s father. She added that the deceased and her later father lived together in Nzoia Scheme, where the deceased lived for over 59 years until her demise on 13 th January 2026. 11. She further pleaded that the deceased never attended the Plaintiff’s father’s funeral. She also averred that throughout the deceased’s illness, she was taken care of by her, her siblings, and her immediate family members. She added that neither the Plaintiff nor his family members took care of the deceased during her illness. 12. The Defendant disputed this court’s jurisdiction to hear and determine this case, given that the deceased’s place of death, the deceased’s burial site, and the Defendant’s place of residence were in Kakamega County outside the territorial limits of this court. 13. It is against this backdrop that the Defendant urged this court to strike out or dismiss this case with costs. 14. Given the nature of this dispute and the need to determine this dispute expeditiously, the parties herein consented to have witnesses who had not filed their witness statements to testify orally before this court for this court to gather adequate evidence in the interest of justice for a just determination of this burial dispute. 15. The path above taken by this court was also informed by the court’s sentiments in Calma vs Sesar 1992 106 FLR 446/452, wherein the court expressed itself as follows on resolving burial disputes:

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“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.” 16. The evidence placed before this court by the parties herein is summarized below. Plaintiff’s Case 17. PW1 Julius Simiyu Wanyonyi testified that the deceased was married to his father one Justus Wanyonyi Kwanusu, in 1950. He added that the marriage was blessed with five children including himself. He further informed this court that his father paid the deceased’s dowry sometime in 1956. 18. He admitted that the deceased separated from his father and remarried in Soy, where she was blessed with three children. He also testified that after the separation, the deceased occasionally visited their home to attend his siblings' funerals. He said that the deceased did not attend his father’s funeral due to illness. 19. He reiterated that he wanted to bury the deceased in their home in Mukhweya since his father had paid the deceased’s dowry. 20. On cross-examination, he conceded that he neither visited the deceased nor supported her during her ailing period. He also stated that he filed this suit in Bungoma since Bungoma was close to him. 21. PW2 Richard Nyongesa Tulukha is the Plaintiff’s paternal uncle. He stated that the deceased from the Bamusomi clan was married to his brother (the Plaintiff’s father) of their basibalongo clan sometime in late 1949. 22. He added that his brother paid the deceased’s dowry in 1950, and that the marriage was blessed with five children, including the

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Plaintiff. He also stated that the deceased separated from his brother in 1954 due to family differences. 23. His further testimony was that the deceased never attended his brother’s burial in 2020, nor did she participate in his brother’s funeralrelated cultural rites. 24. He reiterated the Plaintiff’s position that under Bukusu Customary Law, the deceased ought to be buried in Mukhweya where her first husband, who paid her dowry, rests. He described any marriage contracted by the deceased after her initial marriage as a mere friendship. 25. On cross-examination, he stated that he was his clan’s national chairman. He reiterated that the deceased should be buried at her first matrimonial home, given that the Plaintiff’s father paid her dowry. 26. PW3 Grace Nakhumicha Kwanusu is the Plaintiff’s paternal aunt and the deceased’s sister in law. She corroborated PW1 and PW2 testimonies that the deceased was married to the Plaintiff’s father, and that her clan paid dowry to the deceased’s clan. 27. She took the position that where two men pay dowry for a woman on separate occasions, the first man who paid the woman’s dowry first is deemed to be the woman’s husband. That being the case, she testified that the deceased should be buried by the Plaintiff. 28. On cross-examination, she stated that the deceased was not a wife but a girlfriend in her second marriage, regardless of the duration of her separation from the Plaintiff’s father. Defendant’s Case 29. DW1 Agnes Nambwaya Wamalwa adopted her witness statement on record as her evidence in chief. Her testimony was largely a rendition of her averments in the Statement of Defence herein summarized above. 30. She also stated that neither the Plaintiff nor his family members supported the deceased during her long illness. She further stated that

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the deceased refused to attend the Plaintiff’s father’s funeral, allegedly because the Plaintiff’s father tormented her during their marriage. 31. She urged this court to allow the deceased be buried in Nzoia Scheme where her father was buried. 32. In cross-examination, she testified that the deceased had expressed her wish to be buried in Nzoia Scheme. She added that the deceased told her that she had separated from the Plaintiff’s father in court. 33. DW2 Protas Wafula is the deceased’s son and the Plaintiff’s brother. His testimony was that the deceased’s burial permit was issued to him, and that nothing prevented him from burying the deceased. Parties’ Submissions 34. Mr. Olonyi submitted orally for the Defendant that the case before this court was about a different dead person not the deceased, and that there was no proof that the Defendant wanted to bury the deceased. 35. He also submitted that the Plaintiff never took part in taking care of the deceased during her illness. He reiterated that this court lacked the jurisdiction to hear and determine this matter given that the deceased died in Kakamega and the Defendant was a resident of Kakamega 36. He concluded his submissions by submitting that the deceased’s burial permit was issued to DW2 who was not a party to this suit thus nothing prevented DW2 from burying the deceased. He urged this court to dismiss this case with costs. 37. The Plaintiff on the other hand submitted that he be allowed to bury the deceased. ANALYSIS & DETERMINATION

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38. This court has given due regard to the pleadings, the evidence and the oral submissions by the parties herein. 39. From the onset this court will start by disposing some preliminary issues. The Defendant took time to dwell on the name difference in the deceased’s name as set out in the Plaint on record and in the copy of the deceased’s identity card filed by the Defendant. 40. This court takes the position that the said differences in the deceased’s name did not prejudice the Defendant in any way, and was not fatal to the Plaintiff’s case since the Defendant and the Plaintiff knew the person they were seeking to bury. 41. The Defendant also submitted that she was not a necessary party to this suit given that the deceased’s burial permit was issued to Protas Wafula. She added that there was no evidence that she was planning to bury the deceased. 42. It is noteworthy that at the time of filing this suit, the information that the deceased’s burial permit had been issued to Protas Wafula was not within the Plaintiff’s knowledge. Therefore, the Plaintiff cannot be faulted on proceeding under a genuine belief that the Defendant was planning to bury the deceased. 43. It is against this backdrop that this court finds and holds that the issues that commend to this court for determination are: a) Whether this court has the jurisdiction to hear and determine this burial dispute b) What is the Applicable law in determining this burial dispute c) Where should the deceased be buried d) Whom should the deceased’s body be released to for burial e) Who should bear the costs of this suit Whether this court has the jurisdiction to hear and determine this burial dispute

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44. The Defendant stated that the deceased died in Kakamega County and that she was a resident of Kakamega therefore this court lacked the territorial jurisdiction to hear and determine this burial dispute. 45. In the locus classicus on the subject of jurisdiction, the High Court in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989): “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” 46. From the authority above it follows that this question of jurisdiction is of great significance before a court proceeds with a matter. This demands that when the question of jurisdiction is raised by a party, the court must pause to determine that issue before deploying its judicial tools to determine a dispute before it. 47. This court’s territorial jurisdiction is set out under section 15 of the Civil Procedure Act in the following terms: “Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction: a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain or b) ………………………….. c) the cause of action wholly or in part, arises.

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48. A reading of the provisions of the law reproduced above shows that this court’s territorial jurisdiction is determined by the Defendant’s place of residence or where the cause of action wholly or partially arose. 49. There is no dispute that the Defendant resides in Kakamega County. It is also not contested that the deceased died in Kakamega and that her body was preserved at Kiminini Cottage Hospital’s St. Michael mortuary in Trans-Nzoia County. 50. It is not lost to this court that the Plaintiff is a resident of Mukhweya within the territorial limits of this court. The Plaintiff moved this court in good faith, believing that he was the one to bury the deceased in Mukhweya within the territorial limits of this court. 51. The place where the cause of action arose denotes the place where the dispute first materialized. Taking the circumstances of this case into consideration, one can easily see that this dispute materialized in Mukhweya; where the Plaintiff wanted to bury the deceased, in Kakamega; where the deceased died, and where the Defendant wants to bury the deceased, as well as Kiminini where the deceased’s body was preserved. This shows that the cause of action herein arose in Kiminini, Bungoma, and Kakamega. 52. The foregoing leaves no doubt in this court’s mind that the courts with the territorial jurisdiction to hear and determine this dispute were the courts in Kakamega, Kiminini, or Bungoma. 53. Given that the cause of action herein partially arose in Mukhweya within the territorial limits of this court, this court finds and holds that this court has the territorial jurisdiction to hear and determine this burial dispute. What is the Applicable Law in determining this burial dispute 54. 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, as held in Virginia Edith Wambui Otieno vs. Ochieng’ Ougo & Anor. [1987] KLR 371. 55. The deceased was a member of the Abamusomi clan of the Bukusu community. Nothing on record suggests that the deceased exercised her freedom of conscience under Article 32 (4) of the Constitution to remove herself from the ambit of the Bukusu Customary Law. 56. Section 3(2) of the Judicature Act permits courts to apply customary law where one or more of the parties is subject to it or affected by it, provided that such customary law is not repugnant to

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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). 57. It is also not lost to this court that where a dispute of this nature arises, the court is usually called upon to delve into issues of marriage, like the validity or otherwise of a marriage. Therefore, for purposes of this case, marriage laws are relevant in determining this dispute. 58. 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 deceased was still married to the Plaintiff’s father at the time of her death 59. The question of whoever is married to the deceased at the time of the deceased’s death is always a key issue in determining burial disputes. This is because in matters involving a married deceased person, the general rule is that such a deceased person should be buried by their spouse or next to their dead spouse unless there exist militating factors against that general rule. 60. This position can be gleaned from John Omondi Oleng & Anor vs. Sueflan Radal [2012] eKLR, where 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…”

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61. The Plaintiff and his witnesses took the position that the Plaintiff’s father was the deceased’s legal husband on account of having paid the deceased’s dowry. He reiterated that under Bukusu Customary Law, a subsequent marriage cannot dissolve an initial marriage where dowry had been paid. 62. The Defendant, on the other hand, took the view that the deceased divorced the Plaintiff’s father and married her father. She added that her father also paid the deceased’s dowry. 63. However, the Defendant did not place before this court any evidence to corroborate her position that her father paid the deceased’s dowry or that the Deceased divorced the Plaintiff’s father. 64. Eugene Cotran’s Restatement of African Customary Law Vol. 1 (The Law of Marriage and Divorce) at Page 50 (Chapter 5 on the Luhya Marriages) provides as follows regarding dowry and divorce under Luhyia Customary Law: “1. Definition of marriage considerations (Bukhwi): Bukhwi is a payment or payments of cattle, other livestock or other property rendered by or on behalf of the bridegroom to the father (or other guardian) of the bride, which is necessary for the validity of the marriage and to establish the affiliation or legal control of the issue of the union, and which may be repayable in whole or in part on the dissolution of the marriage. Bukhwi must be distinguished from other collateral payments and gifts made at the time of marriage.” At Page 52 thereof it is stated: “7. Effect of non-payment of marriage consideration: No valid marriage can arise in Luhya law if no Bukhwi is paid. However, a marriage will arise if Bukhwi is partly paid. The family of the wife may sue the husband for the payment of upaid Bukhwi. The balance of upaid Bukhwi at the death of a husband becomes the responsibility of the Omulindi”.

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65. On dissolution of marriages under Luhyia Customary Law, Eugene Cotran’s Restatement of African Law (Supra) provides as follows at page 56: “1. Machinery for divorce. A divorce can be granted either by the family and clan elders under Luhya customary procedure or by a court. a. DIVORCE BY ELDERS. If a man wishes to divorce his wife he sends her back to her father. If the wife wishes to divorce her husband, she runs away to her father and tells him of her wish. The family elders (abisuti) of both parties then discuss the matter and try to reconcile the parties. If they fail to do so, a bigger meeting of clan elders (abashiribwa) of both sides is then called. The elders again try to reconcile the parties and only if they fail do they then consider whether the grounds advanced by the party seeking dissolution are sufficient to justify a divorce. The elders may then agree or refuse the dissolution of the marriage. The return of the bukhwi and the custody of the children are also discussed and settled at this meeting…… b. DIVORCE BY A COURT. As an alternative to (a) above, party seeking dissolution of marriage may sue for divorce in a court. 2. Time at which divorce becomes effective: The time at which a divorce becomes legally effective is as follows;a. IN THE CASE OF A DIVORCE BY THE ELDERS i. ii. if any bukhwi is returnable, when at least one head of cattle is returned; or if no bukhwi is returnable, as soon as the elders have agreed to the divorce b. IN THE CASE OF A DIVORCE BY A COURT, as soon as the decree of the court is pronounced (provided there is no appeal) An appeal can be lodged within one month.” 66. The foregoing shows that under Bukusu Customary Law, a marriage is only deemed to exist where a man pays dowry in whole or in part. It also shows that a marriage under Bukusu Customary Law is dissolved after the return of whole or part of the dowry, where elders

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from the two families dissolve the marriage, or where a court dissolves such a marriage. 67. The evidence on record shows that the dowry paid by the Plaintiff’s father for the deceased was not returned. Further, there is no indication that the Basibalango elders and the Bamusomi elders ever met to dissolve the marriage between the Plaintiff’s father and the deceased. Finally, nothing was placed before this court to prove on a balance of probabilities that the deceased ever divorced the Plaintiff’s father before any court of law. 68. When confronted with circumstances almost similar to the ones obtaining in this case, Mrima J in A K M & another v A K A [2015] KEHC 5799 (KLR) rendered himself thus: 47. According to the Luhya customs, if the Objector wanted to divorce the deceased (given that she was the one who walked out of the matrimonial home) her family was to take the matter to their family elders to attempt reconciliation. If that fails, the family elders would call a meeting of the larger clan elders to attempt reconciliation. In both instances both sides must be in attendance. Upon the failure to reconcile the parties on the second occasion then a divorce would be pronounced. In this case none of the foregone took place. Apart from the Objector going back home and the attempts by her mother to reconcile with the deceased, the matter did not even go beyond that. Further, no dowry or part thereof was returned to the deceased’s family by the Objector’s family. This Court is therefore unable to find that the Objector and the deceased were divorced under the Luhya customary law and instead finds that the Objector and the deceased were still married by the time the deceased died. 69. Guided by the authority above, it follows that at the time the deceased was married by the Defendant’s father, she did not have the

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capacity to contract another marriage. The deceased’s marriage to the Defendant’s marriage was a nullity in law. 70. A strict and textual interpretation of the law on marriage leads to the conclusion that the deceased was married to the Plaintiff’s father at the time of her death. 71. Be that as it may, this court subscribes to the school of thought that where the strict and textual interpretation of the law may lead to absurdities or outcomes that may shock the conscience of any rightthinking person, the court must resort to a purposive interpretation of the law. 72. This begs the question of whether the circumstances of this case demand a purposive interpretation of the law regarding the question of marriage that is germane in this burial dispute. 73. Marriage is grounded on the right of a party to a marriage to choose a partner as provided for under Article 45 of the Constitution. Therefore, this court cannot impose on a person a spouse where the circumstances show otherwise. 74. It is abundantly clear from the evidence on record that the deceased left the Plaintiff’s home over 60 years ago, never to return. She did not even attend the Plaintiff’s father’s funeral. After leaving her first matrimonial home, she was remarried by the Defendant’s father and thereafter established her new matrimonial home in Nzoia Scheme within Likuyani Sub-County of Kakamega County, where she stayed until her demise. 75. This court takes the view that by the deceased leaving the Plaintiff’s father’s home over 60 years ago, never to return, and remarrying, she clearly dissolved her marriage with the Plaintiff’s father by conduct. She openly expressed her intention not to be the Plaintiff father’s wife and actually actualized that intention. 76. The actions above constituted the deceased constructively divorcing the Plaintiff’s father. Therefore, the failure to return dowry to

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the Plaintiff’s father’s clan, or the failure by the elders to agree on the divorce between the deceased and the Plaintiff’s father, or the failure by the deceased to move a court of law to dissolve her marriage with the deceased’s father cannot be used to mask the deceased’s overt act of constructively divorcing the Plaintiff’s father. 77. Given the circumstances of this case, it will shock the conscience of any right-thinking person of this country and the entire world if this court were to make a finding that the deceased was still the wife of a man she constructively divorced over 60 years ago. Such a finding will be repugnant to justice and morality. 78. In the circumstances, this court holds and finds that the deceased was not the Plaintiff’s father’s wife at the time of her death. Where should the deceased be buried and to whom should the deceased’s body be released to for burial 79. The Plaintiff’s claim to bury the deceased was based on his position that the deceased was still married to his father, hence, must be buried in Mukhweya where his father was buried. 80. This court has already made a finding that the deceased was not the Plaintiff’s father’s wife at the time of her death. Therefore, the Plaintiff’s prayer to bury the deceased lacks any basis in law. 81. According to the Luhyia Customary Law (see Eugene Cortran) subscribed by the deceased, and as rightly stated by the Plaintiff, a married woman is supposed to be buried in her matrimonial home. Preferably, a married woman is supposed to be buried next to her husband. 82. 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

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home. Additionally, the custom to which the deceased is subject comes into play. 83. No evidence was placed before this court to prove on a balance of probabilities that the deceased had expressed her wishes on her preferred place of burial. 84. The deceased’s matrimonial home is in Nzoia Scheme of Likuyani Sub-County within Kakamega county. Her late husband Jackton Wamalwa was also buried there. It follows that the deceased ought to rest next to her late husband in Nzoia Scheme. 85. 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. 86. Nothing on record suggests the existence of a land dispute in Nzoia Scheme where the Defendant seeks to bury the deceased. There is also no evidence to suggest that the Plaintiff and his siblings or relatives are not welcome in Nzoia Scheme to bid farewell to the deceased. 87. Therefore, this court finds no reason to interfere with the deceased’s planned burial in Nzoia Scheme of Likuyani Sub-County within Kakamega County 88. 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. 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

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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.” 89. In SAN vs. GW (2020) eKLR, the Court of Appeal observed thus on the doctrine of legal proximity: “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.” 90. In the instant case, the evidence on record shows that the Plaintiff, despite being the deceased’s son, was not close to the deceased during her lifetime and illness. The Defendant and her family were the ones who were close to the deceased during her lifetime and illness. Therefore, there is no reason for the Plaintiff to claim the deceased’s body too late in the day. 91. This court also notes that the deceased’s burial permit serial number 0264230 was issued to her son, one Protas Wafula Asman. There is no dispute between Protas Wafula Asman and the Defendant on who should pick the deceased’s body from the mortuary for burial. 92. In the circumstances, the Defendant and Protas Wafula Asman are at liberty jointly and severally to pick the deceased’s body from the mortuary for burial. DETERMINATION 93. The upshot of the foregoing is that the following orders commend to this court: a) The Plaintiff’s case is dismissed

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b) Bridgid Nasipwondi Wamalwa alias Priscah Nasipwondi Wenani (‘the deceased’) body be released to Agnes Wamalwa and Protas Wafula Asman or either of them for burial in Nzoia Scheme of Likuyani Sub-County within Kakamega County c) The Plaintiff and his siblings as well as his relatives are at liberty to participate in the deceased’s funeral and burial arrangements d) Each party to bear their costs of this suit 94. It is so ordered. Judgment delivered, dated, and signed in open Court at Bungoma this 30th day of January 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Plaintiff Defendant C/A: Albert

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