Johnstone Kassim Mumbo,Alex Munyasya Muumbo & Carolyn Kalunde Muumbo v Mwinzi Muumbo & Billy Mbuvi Muumbo [2018] KEHC 4587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

HCCA NO. 7 OF 2016

JOHNSTONE KASSIM MUMBO.............1ST APPELLANT

ALEX MUNYASYA MUUMBO.................2ND APPELLANT

CAROLYN KALUNDE MUUMBO............3RD APPELLANT

VERSUS

MWINZI MUUMBO.................................1ST RESPONDENT

BILLY MBUVI MUUMBO......................2ND RESPONDENT

(IN THE MATTER OF BURIAL OF T.M. DECEASED)

(Being an Appeal from the Judgment and Decree of the Honorable Resident

MagistrateP. Muholi, Delivered on the 13th January 2016

in Milimani CMCC No. 3773 of 2015)

JUDGMENT

MEMORANDUM OF APPEAL

The Appellants filed appeal from the ruling of the Resident Magistrate Court, Hon.P.Muholi dated 13th January, 2016. The Trial Court issued orders to the effect that the body of the deceased held at Lee Funeral Home be released to the defendants to be interred at THITANI/MIGWANI/1498 in accordance to his wishes. The Plaintiffs together with all other children should be allowed to attend and participate in the burial arrangements of their father. The mortuary fees at Lee Funeral home should be borne by the Plaintiffs herein having caused the suit herein

Being aggrieved by the said judgment the Appellants filed the present appeal vide the Memorandum of Appeal dated 20th January 2016. On the 10th of June 2016, the Appellants, with leave from the Court, filed an amended Memorandum of Appeal. The appellants subsequently filed a further amended Memorandum of Appeal on the 15th of June 2016. The further amended Memorandum of Appeal cited 62 grounds of appeal which in summary are:

1) The Learned Magistrate erred in law and fact by holding that the deceased had proprietary rights in Thitani/Migwani/1498 and therefore ought to be buried there.

2) The Learned Magistrate erred in law and fact in failing to consider the deceased’s wishes as pertains to his burial as stated by the Plaintiffs’ witnesses.

3) The Learned Magistrate erred in law and fact in failure to consider Kamba customary law on burial.

4) The Learned Magistrate erred in law and fact in failure to consider wishes of the larger family and Clan.

5) The Learned Magistrate erred in law and fact in finding that there was dispute with regard to Mwingi/Nzeluni/318.

6) The Learned Magistrate erred in law and fact in directing that the deceased’s body be released to the defendants for burial.

7) The Learned Magistrate erred in law and fact in failing to record, consider and evaluate evidence by Plaintiffs’ and their witnesses, failed to consider issues for determination  and submissions. The Trial Court determined the matter based on own assumptions, expectations and imagination. The Trial Court misconceived the law and applied wrong principles

8) The Learned Magistrate erred in law and fact in finding that the Plaintiffs’ witnesses were not able to categorically confirm that PW2 was a wife to the deceased and that she was a domestic servant. The Trial Court disqualified PW2’s testimony based on fact of her demeanor which was not stated. The Trial Court found that PW2 was not a wife because she did not seek to bury the deceased by instituting proceedings.

9) The Learned Magistrate erred in law and fact in holding that the relationship between parties hereto and the deceased was the main determining factor in testing the veracity of the witnesses. The Trial Court found that the plaintiffs had been cursed by the deceased and were not close to the deceased to have known his wishes.

10) The Learned Magistrate erred in law and fact in finding that it was impracticable to give effect to the purported wishes of the deceased to be buried in Nzatani.

11)  The Learned Magistrate erred in law and fact in finding that the deceased had developed sentimental attachment to the Mbakini land by burying his deceased 2nd wife there.

12) The Learned Magistrate erred in law and fact in finding that the plaintiffs’ were in bad relationship with the deceased for failing to visit him for over 3 years, that the Plaintiffs alienated themselves from the deceased during his lifetime and were not close to him and finding that the 1st deceased wife of the deceased and the deceased were separated.

13) The Learned Magistrate erred in law and fact in failing to consider all relevant issues in totality in arriving at the finding on the relationship between the parties and the deceased. The Trial Court attributed chastised the plaintiffs’ for taking over cases filed by their late mother, 1st wife of the deceased now deceased. The Trial Court attributed acrimonious relationship to Court cases.

14) The Learned Magistrate erred in law and fact in finding that the deceased had shifted his focus on the burial ground from his ancestral land to Mbakini after the relationship between him and the Plaintiffs’ plus their mother soured. The Trial Court found that the Plaintiffs’ never initiated any reconciliatory efforts between themselves and the deceased.

15) The Learned Magistrate erred in law and fact in finding that the plaintiffs’ had no justification in moving to Court and thereby slapping them with mortuary costs and condemned them to pay the mortuary costs for having caused the suit.

BACKGROUND /PROCEDURAL FACTS

TRIAL COURT:

The Appellants herein filed suit in the trial Court on the 3rd of July 2015, in form of a Notice of Motion under Certificate of Urgency and sought temporary injunction be issued restraining the Respondents herein from removing/interfering with the body of the deceased from the Lee Funeral Home. This was after the Appellants had been informed that the Respondents had already dug a grave and were almost finalizing on the funeral arrangements of the deceased’s burial without informing them. The burial was set to take place on one of the deceased’s properties, being THITANI/MIGWANI/1498 (hereinafter referred to as Mbakini) instead of the ancestral land being MWINGI/NZELUNI/318(hereinafter referred to as Nzatani).

Hon T.S Nchoe issued the temporary injunction on the same day. Further, the Appellants herein had filed a plaint seeking, among others, declaratory orders that the deceased be buried at Nzatani instead of Mbakini as that was the ancestral land and further that the Akitutu clan and Kamba Customs provide that where the deceased had more than one wife, the deceased should be buried next to the first wife in the case where the wife predeceases the husband.

The 2nd Respondent replied to the Appellants’ application through a replying affidavit dated the 16th of July 2015 where he deponed that the relationship between the appellants and deceased was an acrimonious one and further that the deceased had expressed orally and through his will that he wished to be buried at Mbakini. This was the issue in contention before the trial Court. A total of 19 witnesses testified, 11 from the plaintiff and 8 from the defendants.

On the 13th of January 2016, Hon. P. Muholi, on the 13th of January 2016, delivered the judgment allowing the Respondents to bury the deceased at Mbakini next to his 2nd wife as per his wishes. In addition, the Learned Magistrate ordered that the mortuary fees should be borne by the Plaintiffs having caused the suit. This judgment led to the present appeal. The Appellants were granted unconditional stay pending hearing and determination of the appeal.

HIGH COURT

After the memorandum of appeal was filed, the Respondents filed an application by way of notice of Motion under certificate of urgency dated 15th of April 2016, seeking orders, inter alia that the Court compel the appellants to prepare their record of appeal, the Memorandum of Appeal be struck out, the order granting unconditional stay be set aside and that an order be issued directing the Appellants to deposit the mortuary fees. This was supported by an affidavit sworn by Mwinzi Muumbo where he deponed that the appellants had not yet filed the requisite documents and the matter had not been placed before a judge occasioning delay and increase in the mortuary fees. The Respondents filed a further application dated 10th May 2016 for orders that the application dated 15th April 2016 be heard on a priority basis. In response to the application dated 15th April 2016, Counsel for the Appellants filed a replying affidavit stating that the reason for delay was because the proceedings had not been typed yet at the time of filing the notice of appeal and once they had been typed, the Learned Magistrate was on leave and therefore they could not be issued with proceedings that had not yet been signed.

On the 8th of June 2016, the Appellants filed three volumes of the Record of Appeal. Further, on the 10th of June, with leave from the Court, the Appellants filed an amended memorandum of appeal. Subsequently, the Appellants filed a further amended memorandum of appeal on the 15th of June 2016. In addition, the appellants on the same day filed a Notice of Motion under certificate of urgency seeking orders that the Court allows them to produce additional evidence during hearing since it was not available during the hearing in the trial Court and the evidence they sought to introduce was material in determining the issues raised in the Appeal.

The matter then came up for directions before Hon. Justice W. Musyoka on the 16th of June 2016 where Counsel for the appellants made an oral application for appointment of administrators in relation to the deceased’s estate so as to allow them to prosecute the appeal. In a ruling delivered on the 27th June 2016, the Court dismissed the application and further recused himself from proceeding with the matter. The Appellants filed a further supplementary record of appeal on the 21st of July 2016.

The matter was placed before Hon Justice R.Ougo on the 22nd of September 2016. The Respondents were directed to file their responses to the application dated 15th June 2016. The Respondents replied to the application on the 14th of December 2016 and stated that the 3rd Appellant in the succession proceedings deponed in her affidavit that the Mbakini land was one of the deceased’s assets. Further, the letter the appellants sought to introduce was from the adjudication and settlement office which did not have jurisdiction to issue the letter

On the 14th of November 2016, the Respondents filed an application seeking orders that the originating summons HCC No.39 of 2010(O.S) included in the supplementary record of appeal be expunged since it was not relied on in the Trial court. Further, they sought that the Replying Affidavit sworn by the 3rd Appellant in ELC 193 OF 2014 be included in the Record of Appeal as it was relied on in the Trial Court.

On the 18th of July 2016, Hon. Justice R. Ougo delivered a ruling on the two applications filed on 15th June 2016 (dated 14th June) seeking to introduce additional evidence and the other filed on 14th November 2016(dated 31st October 2016) seeking to include a Replying Affidavit filed by Carolyne Kalunde Muumbo and the division of matrimonial proceedings matter be expunged. The Court dismissed the application dated 14th June as the issue on ownership of land was not an issue in contention. The Application of 31st October was however allowed as the issue of matrimonial property did not touch on the burial dispute and further that the Appellant did not oppose the inclusion of the Replying Affidavit. Aggrieved by the decision, the parties filed a notice of appeal dated 28th July 2017. In addition, the Appellants filed an application seeking stay of execution pending hearing and determination of the appeal lodged in the Court of Appeal dated 4th October 2017. The Respondents, in response to the application dated 4th October, deponed that the Appellants did not meet the threshold for granting of stay of proceedings and there is no reason to be granted stay as it amounts to frustrating the proceedings and would in turn prejudice them. Hon. Justice R. E. Ougo delivered the ruling on the 29th of November 2017 in relation to the application filed on the 4th of October 2017. The Court granted a conditional stay of execution by ordering the appellants to furnish security of Kshs. 1,000,000/- within 30 days.

Pursuant to the conditional order of stay granted by the Court on the 29th of November 2017, the Appellants filed an application through Notice of Motion seeking orders that the Court approve the use and/or application of security in the form of title number L.R NO. MWINGI/NGILUNI/1138 registered in the names of Kavula Kimanzi and Mwaniki Kasimu. . Counsel for the Respondent, in a replying affidavit filed on the 28th of December 2017, sought orders that the application be dismissed since the title could not offset the mortuary fees and that title deeds are not ample security

On the 24th of May 2018, the Respondents herein filed a Notice of motion application under urgency seeking orders that the Court be pleased to review, vary and/or modify the orders issued on the 18th of July 2017 and 29th November 2017. This application was premised on the grounds that it has been five months since the Appellants filed the notice of appeal in the Court of Appeal and the parties have not yet filed the Record of Appeal and the Mortuary fees are still accruing. Further the Respondents need closure in the matter as the father had not been buried 3 years after his death. The Respondents withdrew the Replying affidavit dated 14th November 2016 and further to allow the Appellants to produce the letter dated 18th January 2016 during the hearing of the appeal. Hon. Justice R.E Ougo allowed the application and directed the matter be placed before any other judge for directions. On the 14th of June 2018, the matter was placed before this Court. On the 25th of June 2018, the matter came up for further hearing and the directions issued were that the advocates were to agree on which representative of the family should testify and the further hearing proceeded on that day.

APPELLANTS’ CASE

On 25th June 2018, Caroline Kalunde Muumbo daughter of the deceased from the 1st house testified as follows;

The issues for place of burial of the deceased were not open for discussion during the funeral meeting which she attended twice. She stopped attending as her views, her siblings and other family members were not taken into consideration.

She learnt that the Respondents had already instructed people to start digging the grave to bury the deceased in Mbakini. They had not agreed and moved to Court as they felt interring the deceased’s remains in Mbakini was contrary to Kamba Customary law.

The Mwingi/Nzeluni/693 5. 3 hectares is registered in the name of Timothy Mwande Muumbo, deceased.

The Respondents wanted to bury the deceased in Mbakini in accordance with alleged wishes in the Will of 30th April 2015 which they pursued grant of Probate and they had not objected to making of grant as they contested the Will.

Nzetani is ancestral land where the deceased’s 1st Wife, their mother was buried. It is the place the deceased pointed out as family burial site where all family members would be buried. Andrew Muumbo, Francis Muumbo and James Muumbo are buried in the said land. The paternal grandparents are buried there too.

Mbakini is registered in the name of Edward Muumbo (deceased) now transferred to deceased’s widow and in the Will of the deceased, the suit property is to be held in trust for the deceased’s grandchildren. Timothy Mwandi Edward, Clara Edward and Neema Edward absolutely. This was confirmed by document of Search Plaintiff Exhibit 1 letter dated 18th January 2016 that Parcel 1498 was in the name of Edward Muumbo and not Timothy Muumbo (deceased).

Mbakini is private land /property and is not accessible to all members of the deceased’s family.

The Mbakini land has 2 different Sale Agreements; one that the Appellants’ filed and obtained from the copy that the deceased filed in High Court Civil Case No 39 of 2010 (OS) Exhibit 2The Respondents filed a similar Sale Agreement over the same property but it has inserted inscriptions.

PW1 told the Court, that during the burial of their late brother Andrew Muumbo in 1997, their father said Nzatani was where the family graveyard is. In 2008 when their step mother died, the deceased insisted that she was to be buried in Mbakini on her son’s land as during her life she refused to be buried in Nzatani as it was 1st wife’s matrimonial home and instead opted to be buried at her home in Makueni. So the deceased buried her at Mbakini as it was contrary to Kamba custom to bury her at her own home.

In 2013, when their mother passed on, she, Kassim and Alex and 3 Church elders visited the deceased and he said their mother was to be buried in Nzatani as it was ancestral land and she had established her matrimonial home on the land.

PW1 produced the Paternal Family Tree of the Nzunga Family Exhibit 3 to illustrate the family of Muumbo who have passed on and are all buried in Nzatani. Andrew Muumbo son of the deceased by 2nd wife was /is buried in Nzatani. Edward Muumbo is/was buried  on his land Mbakini which now belongs to the deceased’s daughter –in- law; widow of Edward Muumbo. PW1 reiterated that it is unheard of a rich man, a man of means like the deceased to be buried on someone’s land, he should be buried with respect, on land that is accessible by all family members. Nzatani is the land that is accessible to everyone.

All children of the deceased should be involved in his burial, each one’s view should count and no one should dictate to the others.

As for costs of the funeral of the deceased, PW1 said there was money that was contributed by family members and well-wishers that is intact. The mortuary fees may be settled from the deceased’s estate which is sound and there are rental properties that generate funds. There is also Ksh 1. 2 million that PW2 claimed the deceased had in the house for emergency purposes.

In cross examination, PW1 admitted that their mother, 1st wife of the deceased committed suicide due to stress and she was ailing and on medication. She lived with PW1 and she was harassed by her children who went and locked her out of her home and took away her livestock.

PW1’s mother had filed OS 39 of 2010on division of matrimonial property after she was locked out of her home and her livestock taken away. She refused to live with the deceased in Kileleshwa home as it was contrary to Kamba customary law to reside in the 2nd wife’s home.

PW1 admitted that there was strained relationship in the family and they had agreed that the case on division of matrimonial property HCCC (OS) 39 of 2010would be withdrawn upon an MOU being drawn according to the wishes of their mother and agreed upon but it was not finalized before their mother’s death and  deceased’s death.

PW1 confirmed that on 3rd January 2014, she met her father, they discussed the issue of the ‘curse’ letters one of them the one dated 26th October 2012. He agreed to withdraw the curse letters as shown by the letter dated 24th January 2014 which she received from Alphonce M. Musyimi.

PW1 admitted that she deponed the affidavit on 18th February 2015 in ELC 193 of 2014and it was 3 months before deceased’s death and that is what she thought of the father at the time.

PW1 is against the idea that the deceased should be buried in Mbakini, the suit property of Edward Muumbo (deceased) and whose widow is now owner and her children would amount to their father being buried by sister-in-law. The said land is not accessible to the family as it is private land.

PW1 admitted that the wishes of a person carry weight and her step mother was buried in Mbakini as it was her son’s land. In 2002 when the land was bought for Edward Muumbo, he was not in school, but working for and with the deceased, he had stalls in Kayole. He was a businessman and was married at the time.

PW1 confirmed outstanding bill at Lee Funeral where the deceased’s body is preserved is at Ksh 3 million.

PW1 stated that her father and mother’s relationship had deteriorated and in 2010 her mother visited the deceased and had a good relationship.

The place of burial is about customs and not the type of marriage. The deceased told them he was to be buried in Nzatani which is ancestral land. The land is in his own name to date.

RESPONDENTS CASE:

On 27th June 2018, Mwinzi Muumbo Muandi, eldest son/child of the deceased from the 1st house testified as follows;

He knew that they were in Court to determine the place of burial of his late father. He would like him to be buried at Mbakini as these are his wishes. He bought the land in Mbakini and developed it. He transferred it to the 2nd House He sent Billy Mbuvi to have the land transferred to the 2nd House. He produced documents to prove that the deceased developed Mbakini;

a) Water borehole  field worksheet and installation dated of 2nd March 2015- Defence Exhibit 1

b) Contract for Borehole installation of12th Sept 2014- Defence Exhibit 2

c) Hydrological Survey Report- Defence Exhibit 3

d) Copy of cheque to KPLC of 24th October 2014-Exhibit 4

e) Letter from the District Adjudication Officer to deceased dated 5th October 2012- Defence Exhibit-5

f)  There is Map of residential home- Defence Exhibit 8 it is almost finished except for plastering and roofing.

DW1 stated that the deceased should be buried in Mbakini because his step mother and step brother are buried in Mbakini. He did not want deceased buried in Nzatani as his father and mother did not get along, they were estranged but not divorced, she was still his wife as she had paid dowry.

The other sons of the deceased of the 1st house and the deceased’s brother Ndavuta were on one side against the deceased. It is customary law that the owner of the home is not sidelined and his home taken over by another man while he is alive.

DW1 said that the land in Nzatani is the battleground. Kassim and Alex took I bull and slaughtered it at the deceased’s brother’s home; when the deceased asked about it, there were many cases. Kassim and Alex took 2 donkeys and hid them again when the deceased asked there were cases. When his mother was alive, she filed a case against his father and she wanted property. Therefore the deceased cannot be buried next to the 1st wife as they had not reconciled. Under customary law, if this happens, his spirit will not rest.

DW1 stated that this is not the 1st time that one is not buried on ancestral land Matiti Muumbo 1st born of his grandfather was buried at his wife’s home. Muthui Muumbo brother of the deceased was buried at his 2nd wife’s home. His mother’s brother was buried far off from home. Father in law of Muthui Muumbo was buried at Kiine and not Koome, at 2nd Wife’s home.

DW1 insisted that the deceased should be buried in Mbakini as before he died he mourned his 2nd wife  and he said he wanted to be buried next to his 2ndwife.He called elders and told them ,he wanted to be buried in Mbakini. Anyone can be buried anywhere one chooses. If the deceased did not state the place of burial, then DW 1 as 1st born son of the deceased would decide. It is his duty to consult if his mothers were alive and the siblings, but his word would be final.

DW1 stated that when his mother died, Kassim sent elders to the deceased to allow their mother to be buried in Nzatani as she had pleaded that her home was in Migwani Plot 20, yet Nzatani was her matrimonial home. His mother was buried at Nzatani and he sent DW1 to represent him at the funeral.

DW1 informed the Court that the siblings in 1st House were not interested in the deceased, their father, they ganged up with their mother, 1st wife of the deceased and fought the deceased and him. The deceased cursed them and DW1 had the letters in Court to prove the same.

In 2010, when their father sent him to the shop, hotel and house at Migwani Plot 20, Kassim, Caroline and others beat him up physically and evicted him from where he lived. He does not have a good relationship with his siblings of the 1st house and especially when their father was old, they were not fair/good to their father and him at all.

DW1 said that the deceased tried to call all the children and tried to reconcile them and they refused, they had done many things to him. He produced various letters from the deceased to the Appellants.

a) Letter dated 26th October 2012- from the deceased to the Apellants

b) Letter dated 8th November 2010- from deceased to 1st family members

c) Letter dated 10th December 2010- from deceased to PW1

DW1 stated that; although the land Mbakini is registered in the name of Edward Muumbo(deceased) it was bought by the deceased and it is accessible to all family members. The cost of mortuary expenses should be paid by the Appellants, they did not sit down to discuss the issue as they are unable to agree.

Since the deceased was a symbol of unity, he should be buried next to his 2nd wife who loved and cared for him. The deceased died in the 2nd wife’ home and should be buried on the 2nd Home’s land, Mbakini.

During the funeral Committee meetings Kassim (Son of deceased, 1st house) came with Ndavuta (brother to the deceased) and called them to a separate room and after discussions, the next day he was served with Court order. They invited Appellants to the preparation meeting of their father’s funeral to participate but not take over as the deceased did not want them at the funeral. They rushed to Court so that they could lead the process.

In cross examination DW1 stated that the Search Document confirmed that Mbakini is registered in Munanye Makau and then Timothy Mulandi Edward as owner of the land.The letter shows the land belonged to Edward Muumbo. However, the deceased can be buried where he wants to be buried but not necessarily where he has bought land. If the deceased bought the land in Mbakini for his son, it is his land too. The family of Edward Muumbo agreed to the deceased being buried on the land.

DW1 reiterated that the deceased told him and elders and it is written in the Will that he wanted to be buried in Mbakini.

On the incident regarding Migwani Plot 20, DW1 confirmed that he broke the padlock at the place his father sent him to check. Kassim took their mother to Embakasi and he evicted him and threw his things out. Luckily, his family was not around.

DW1 stated that his father died on 22nd June 2015 at 12noon. He was in Mwingi and he was called by Billy Mbuvi and informed of the deceased’s death. They informed their siblings on 23rd June 2015. They formed Committee, Carol, Kassim and Alex were not part of the Committee as it was not mandatory that they are present. He gave directions that their father’s grave be dug in Mbakini.

DW1 confirmed that it is him and Billy Mbuvi who took the deceased to Lee Funeral home. He did not consult the other siblings as they did not treat the deceased well during his lifetime and could not cooperate.

DW1 stated that Kassim prolonged this matter and his side should shoulder the cost of the suit and Lee Funeral outstanding bill. He was not amenable to meet the costs to enable the deceased’s burial take place. He was ready to pay the bill for the few days to the burial.

It was /is his sole responsibility to source funds for their father’s burial, the other brothers may be involved but they are cursed and should not  offer a hand to bury their father. He banished them from all his land and buildings. When their father was alive, the Appellants were not coping with him and now for his burial they want to be involved. As the 1st born he is to lead to organize the burial and shall be the 1st one to put soil on the grave.

DW1 admitted that the letter dated 27th January 2014, the deceased made peace with the Appellants, and withdrew the curse and he stated he had nothing against his children. DW1 stated that the Appellants did not fulfill the required ceremony of slaughtering a goat to remove the curse. This was an oversight.

DW1 did not agree with the Akitutu Clan fact-finding mission Committee, they invited him to the meeting and he told them point blank that the deceased would be buried at Mbakini and not Nzatani. He did not know them, they came from various parts of the country and they visited both Nzatani and Mbakini without their consents. The grass root members of Akitutu clan were not involved. They were brought by Caroline Muumbo and Alex and Kassim Muumbo. Kassim is their Treasurer.

ISSUES FOR DETERMINATION

After outline of the memorandum of appeal and the evidence adduced by PW1 on behalf of the Appellants and DW1 on behalf of Respondents by virtue of Section 78 of Civil Procedure Act, this Court is called upon to analyze and determine the issue of burial of the deceased based on the following issues;

1) Is the statutory law and/or customary law applicable in the instant case?

2) What were the deceased’s wishes of his burial?

3) What was the deceased’s conduct, demeanor and circumstances surrounding the relationships he had with 1st and 2nd wife who predeceased him and the children?

4) Where shall/should the deceased be buried, by who and how?

5) Who will pay/settle outstanding Mortuary fees and Costs of appeal?

6) Did the Trial Court err in law and fact as stated in grounds of appeal and in granting the Defendants/Respondents right to bury the deceased in Mbakini next to his 2nd wife according to his wishes, and the Plaintiffs to settle the Mortuary fees having caused the suit herein.

ANALYSIS

In Selle v Associated Motor Boat Company Limited [1986] E.A.123,the Court of Appeal stated that the duty of the court on a first appeal is to re-evaluate the evidence and come to its own conclusions. This is a first appeal, and the court is therefore entitled to re-evaluate the facts or evidence de novo and come to its own independent findings and conclusions.

LAW

Section 78 of Civil Procedure Act states as follows:

(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—

a) to determine a case finally;

b) to remand a case;

c) to frame issues and refer them for trial;

d) to take additional evidence or to require the evidence to be taken;

e) to order a new trial.

(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.

Article 2(4)of the Constitution of Kenya provides;

2. Supremacy of this Constitution

(4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

Section 3(2) Judicature Act provides;

3. Mode of Exercise of Jurisdiction

(2). The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

1)  Is the statutory law and/or customary law applicable in the instant case?

This Court concurs with Trial Court, that there is no statutory law on burial; however there is case-law and by virtue of the principle of stare decisis ought to persuade or bind this Court on determination.

By virtue of Article 2(4) Constitution 2010 and Section 3(2) Judicature Act Cap 8 Laws of Kenya they recognize application of customary law where relevant and not repugnant to the Constitution.

The deceased was of Kamba origin from Akitutu Clan and he practiced Kamba customary law. At some point he was patron of the clan. During his life the Akitutu clan was engaged in reconciliation efforts between the deceased and his family.

It is settled law that a dead person is generally buried according to his/her customary practices.

What were the deceased’s wishes of his burial?

In the deceased’s Will dated 30th April 2015 at Pg6, Funeral Wishes the deceased stated that he wished to be buried in Land Parcel Number 1498  Mbakini Farm Migwani where his 2nd wife was buried.

EVIDENCE IN TRIAL COURT

During Trial, PW1 John Masinde Superintendent Of Police from Directorate of Criminal Investigations (DCI) No 231371 Forensic Examiner told the Court and produced his report that the signatures on the Will were not appended by the author of the known signatures- the deceased. On the other hand DW8 Emmanuel Kenga retired Police Officer qualified Forensic Examiner and he presented his report that the signatures on the Will and known signatures were by the same hand by the deceased. The Will was/is contested and the matter is subject to a separate Succession Cause in this Court with regard to deceased’s estate and remains unresolved. Therefore, although Courts have held that there is no property in a corpse and that statutory law has not created such proprietary interest, unless and until the validity of the Will is determined, this Court cannot rely on it as expressing the deceased’s wishes as to burial. More so, the Will cannot be held to be valid in relation to burial but not the distribution of the estate or vice versa, it is either a valid will or not then parties may or may not rely on it. At this stage this Court shall not rely on it as it is subject to its validity being determined.

The other source of deceased’s wishes from the testimony of witnesses in the Trial Court and High Court.

PW 2 Elizabeth Mumbi Kieti- alleged 3rd wife of the deceased who lived with deceased from 2011 to May 2015 and she left due to disagreements. She stated that the Will was not by the deceased. She knew his lawyer and he did not come home while she was there. The deceased only left the house to hospital or Court he was under doctor’s instruction not to move a lot. When presented with copy of Will she said the signature was not by deceased. She confirmed that the deceased told her that an old man is buried at his 1st wife’s home.

PW3 Josphat Ndula, brother to the deceased- According to Kamba customs One is buried in ancestral land  and next to 1st wife’s grave. The deceased should be buried in Nzatani. He said he was with the deceased who told him he wanted to be buried in Nzatani. There are many of their family buried there including their grandfather. If not it is believed many people will die.

PW4 David Kimathi Kitenai nephew of deceased stated that an old man is buried in ancestral land. Muumbo, Mulingo  and Munyasia Sila are buried there in Nzatani. He said if deceased is not buried at his ancestral home, they will be cursed and people will die.

PW5 Muthengi Jackson – member of National Committee Akitutu Clan Elected as General Secretary of Akitutu Clan- Kitui Clan. PW5 was part of the delegation that was sent to Nzatani and Mbakini to investigate where the deceased should be buried. When they got to Mbakini, the delegation found a grave had been dug already by the Akitutu clan. The grave was built using stones which was against their customs. He stated that there was a two bed roomed house on the land that belonged to Edward Muumbo. In addition, he alleged that the deceased was not Edward’s biological father. In relation to the deceased’s second wife being buried on the land, PW5 stated that this was because she used to reside in Nairobi and did not have a home in Mbakini or Nzatani.

When the delegation got to Nzatani, there was a boma being constructed, a borehole, park, a plastic tank, electricity. There were also graves, one belonging to a son of the 2nd wife, son to 1st wife and the 1st wife’s grave. He also stated that one of the elders, during Phiata’s funeral, the deceased showed him where he had wished to be buried and they took photos. Also, one can choose where to be buried by calling the family or writing a will and there will be no curse.

In relation to Kamba customs, PW5 stated that according to Kamba Customary Law, the deceased should be buried at Nzatani. The deceased can be buried next to the 2nd wife if there is no transportation to the other burial site and everyone agrees. However, 1 black goat and 1 black cow have to be slaughtered. If the deceased is not buried where the first wife is buried, the family will be cursed. During cross-examination, he stated that the first son has the duty to bury the father

PW5 had a good relationship with the deceased and in the beginning of June 2015, he was planning to reconcile the family. The problem with the family was that Kassim was not visiting him and Billy and Mwinzi were squandering his wealth. He wanted to shoot Mwinzi.

PW6- Julius Nguu Moli- Divisional Clan chairman (Akitutu clan) Mwingi division

PW6 stated that the deceased was a member of Akitutu Clan and national patron of clan. He stated that according to Akamba customs the deceased is to be buried at the home of the first wife at Nzatani and it is not proper to bury him at the son’s land. He stated that the clan’s wish is that the deceased is buried at Nzatani where other members of the family have been buried. It is not proper for the deceased to be buried in his son’s land under Kamba custom. The Nzatani land, there is ongoing building of new house and electricity connected.

PW7- Wilfred Mwinzi Mbuvi- cousin to the deceased, chaired the funeral meetings

The 1st meeting was on the budget. The burial date had been set to the 11th of July. Burial place was to be agreed by the family but the issue of the burial site being Mbakini was raised by Mwinzi Muumbo. The family Chairman stated that it was not proper for the deceased to be buried at Mbakini. He maintained that they did not participate in the grave digging at Mbakini. He also stated that the practice in the Muumbo family is that the villagers dig the grave and the family produces the goat. This happened during Edward’s and Phiata’s funeral. He stated that the funeral meetings were stopped once the Court issued the injunction. He further stated that the ancestral land was at Nzatani.

PW8- Joseph Kasima- Former Chief and the deceased’s friend/former schoolmate to 1st wife of deceased. He resolved burial disputes and therefore conversant with Kamba customs on burials. He stated that when an old man passes on, he should be buried next to his first wife’s grave which in this case is at Nzatani. He gave an example of his father who had 8 wives but was buried at the first wife’s homestead. He further stated that if the deceased is buried next to the second wife, a curse will befall the family.

PW9- Richard Matitu Muthengi – Deceased’s grandfather. The deceased, during the funeral of the first wife, called and told him that when he dies, he should be buried next to her and his children and all the graves were to be at the same place. Further according to Kamba customs, children do not dig their father’s grave. He also stated that prior to the first wife’s death, their relationship was good but there were normal issues that they had. During cross-examination, he stated that the deceased did not attend the first wife’s funeral and the last time they had met was in 2012. This Court finds his evidence unreliable if he did not attend deceased’s 1st wife’s funeral and he had not seen the deceased since 2012 how did he learn from deceased where he wanted to be buried?

PW10- Alex Munyasia Muumbo-4th born Son to deceased and Phiata (1st wife) He stated that after the deceased death, they were informed that he had left a letter that provided the deceased’s wishes on where he would be buried. He stated that the committee was set up during the first meeting and him and his siblings were not given a slot. The place of burial was not decided during the meetings. He stated that he knew that a grave was being dug at Mbakini and he travelled to the said land and confirmed that the same had taken place. He was of the opinion that the burial plans were to be agreed on by all family members which was not the case.

In relation to the will, PW5 stated that the will was read by Mr. Nyenge, the executor, on the 27th of June 2015 in the presence of the deceased’s children and extended family at his home in Kileleshwa. It was his opinion that the signature did not belong to the deceased and the will excluded a lot of family members.

During cross-examination, PW10 stated that after the family meeting in 2010, reconciliation was not achieved and at the time of his death, the issues were not resolved. He stated that they had a good relationship with the deceased and the last time they were together was in 2013.

PW11-Johnstone Kassim Muumbo 2nd Born of the deceased and Phiata. He contested the will since some properties were left out and the signature did not belong to the deceased. In relation to the burial site, PW11 stated that the first family has an upper hand in deciding where the deceased should be buried and Nzatani was the best place. He also stated that the Akitutu clan was in support of this position. He further submitted that the relationship with his father was good. In conclusion, he maintained that he wanted their father buried in Nzatani.

DEFENDANTS’ WITNESSES

DW1- Mwinzi Muumbo- deceased’s and Phiata’s first born. His relationship with his father was good. He was the donee in the deceased’s power of attorney. He did not however have a good relationship with his mother Phiata and he did not support her at all. He also stated that he did not have a good relationship with the siblings.

In relation to the land at Nzatani, he stated that the deceased had wanted to sell it because of misunderstandings in the family. In relation to the Mbakini land, he averred that the land belonged to the deceased and his first son from the second family and it was registered under him as he wanted it to be the home for the second family.

DW1 stated that the deceased informed him of his wish to be buried at Mbakini in 2008 during the burial arrangements of the second wife. He testified that the family members were to decide on the burial site but they were divided. He however agrees to the wishes of the deceased as per his will. It was his opinion that the first-borns make the decision of the location of burial. He further gave examples of people who have been buried next to the 2nd wife and stated that there have been no repercussions yet. He maintained that the wishes of the deceased should be respected and he should therefore be buried in Mbakini so as to avoid any curses. Further, he stated that cursed people should not participate in the burial unless the curse is revoked by the slaughtering of an animal. He concluded by confirming that the ancestral land was in Nzatani.

DW2-Ben Munyasya. The deceased’s advocate and friend.During examination in chief, DW2 submitted that he drafted the deceased’s will in 2010 after he had been hospitalized. On the issue of the plaintiffs being cursed, he stated that the deceased had cursed the plaintiffs after the suit was instituted against him even after they had already reconciled. He confirmed that the deceased told him verbally that he had wished to be buried at Mbakini next to the 2nd wife. The final will was signed on the 30th of April 2015 at his bedroom in the presence of himself and Alexander Muema Makau, a paralegal. He then forwarded the will to David Nyenge (executor) on the 23rd of June 2015.

DW3- David Kyule Nyenge- Brother in-law and executor in his will.He testified that the deceased had informed him that he had wanted him to be the executor of his will. He stated that he was given the will, sealed, on the 23rd of June 2015 and he did not open it until the meeting with the deceased’s family after his death.

DW4- Bill Mbuvi Muumbo- 2nd Born, second family.He testified that the deceased informed him in 2008 that someone’s wishes should be respected and that he wished to be buried in Mbakini with the second wife. He therefore wants to honour the deceased’s wishes to avoid being cursed like he did to the plaintiffs. He further stated that anyone can access the land at Mbakini if they so wish but if the burial is at Nzatani, he would not attend. He also testified that the deceased did not have a good relationship with the step-brother, Ndavuta Muumbo, as he used to bring witches in his house at Nzatani and this is the reason why he didn’t want to be buried there. In respect to the grave digging, he stated that it commenced after the will was read.

DW5- Lt. Colonel Alphonse Mutwayo Musyimi- member Akitutu clan, Secretary at Location level; Patron-Kitui west. He was a friend to the deceased and they met in 2014. During their meeting the deceased informed the witness of the family issues they were having and his plans to reconcile the family members and he was willing to forgive them especially Caroline, Kassim and Munyasya.

In relation to the curse, DW5 stated that the curse had not been removed by the deceased prior to his death as rituals were not performed. On the issue of the deceased’s wishes on the place of burial, he stated that his wishes should be respected. The deceased told them that he wished to be buried in Mbakini on 9th January 2014 and be buried next to his 2nd wife.

He heard of the fact finding mission by Akitutu Clan and he said, he was not informed. When he received the report he did not agree with it and he said it was unprocedural. The matter ought to have been handled from village, sub county, county and then National Level.

DW6- David Mwaniki Kavila. He stated that on 9th January 2014, the deceased told them that he wanted to be buried at Mbakini next to his 2nd wife. This is because his first wife was unfaithful and she had not gone through the Kamba custom of cleansing. However, if the deceased had not stated his wishes, the 1st born son of the deceased should state where he should be buried and thereafter go on with the custom.  He also stated that it is not a must for one to be buried at the ancestral land. He further testified that where the deceased had not indicated where he wished to be buried and the directions by the first born son are not followed, the entire family will be cursed. It is not a must that one is buried in ancestral land, one can be buried at his home.

DW7- Masaa Kimanzi- Sister to the deceased. She stated that whenever she came to Nairobi, the deceased told her that he wished to be buried in Mbakini where they were born and therefore his wishes have to be respected. According to DW7, she does not know of any custom that provides that the deceased has to be buried next to the first wife. According to DW7, Ndavuta, their stepbrother, caused disharmony in the deceased’s family by influencing the Appellants against their father.

DW8- Emmanuel Kenga- Qualified Forensic examiner, retired Police Officer of 25 years’ experience. He presented his report of 7th October 2015 and confirmed that it was his opinion that the signatures on the Will and known signatures were by the same impression and stamp impression was by the same instrument.

DETERMINATION

According to the trial Court’s proceedings, the following people stated that the deceased expressed his wishes to be buried in Nzatani:

a. Elizabeth Kieti(PW2) Josphat Ndula(PW3) & Richard Matitu Muthengi(PW9). This Court does not believe PW (9) as the deceased did not attend the 1st wife’s funeral , how and where did he tell him this and yet he said he met the deceased last in 2012?

The following people testified that the deceased had informed them that he wanted to be buried at Mbakini:

a. Mwinzi Muumbo(DW1) Ben Munyasya (DW2) Bill Mbuvi Muumbo David Mwaniki Kavila(DW6) Masaa Kimanzi(DW7)

The Appellants relied on Kamba customary law as per the evidence of PW 3,4,5,6,7&8 his brother, nephew, and elders; that the deceased ought to be buried at his ancestral home, Nzatani, where the 1st wife is buried and if that is not done there would be a curse and people would die.

On the other hand, the Respondents relied on the deceased wishes as he expressed to the following witnesses; DW 1, 2, 5 & 7 son, advocate, son and sister to the deceased.

During these proceedings, PW1 Caroline Muumbo in her testimony claimed the deceased told her that Nzatani would be the family gravesite during step mother’s burial. There is also PW3 his brother who said the deceased told he wanted to be buried at Nzatani and PW2 who lived with him and took care of him, she said the deceased told her an old man is buried next to 1st wife.

The totality of the evidence is that it is one’s word against the other on the diverse statements that the deceased is alleged to have said with regard to his wishes and place of burial. Since this Court cannot conclusively determine what the deceased said to who about his wishes, the Court shall rely on Kamba customary law.

2) What was the deceased’s conduct, demeanor and circumstances surrounding the relationships he had with 1st and 2nd wife who predeceased him and the children?

The deceased Timothy Mwandi Muumbo married Phiatah Kithumbi Muumbo on about 1957 under Akamba customary law and they had the following 10 children;

Mwinzi Mwandi Muumbo, Johnstone Kassim Muumbo, Francis Munyoki (deceased) Alex Munyanya Muumbo, Charles Muimi (Lost) Caroline Kalunde Muumbo, Grace Kakali, Jackline Muthenya, Susan Kamene And Jane Mwende ( Deceased)

They resided in Nzatani village, Mwingi South District, The deceased and 1st wife lived apart after, she discovered the deceased married Josephine Kiloko 2nd wife in 1971 and they lived in Narok, then Kakamega and finally ,Kileleshwa Nairobi. They had 5 children namely; Edward Muumbo (Deceased), Billy Mbuvi Muumbo, George Kenyatta Muumbo, Mark Musembi Muumbo and Andrew Musyoka (deceased).

According to the testimony by the 1st son and child of the deceased DW1, the deceased stated that the 1st wife was unfaithful and that is why he left her and married the 2nd wife. These allegations were never conclusively dealt with during the 2 spouses’ lifetimes. The deceased took the children who lived with the 2nd wife, he educated them locally and some abroad.

According to the 1st wife, as gleaned from affidavit filed in support of her application High Court Civil Case (OS) 39 of 2010, where she sought division of matrimonial property, she deponed that the Respondent deserted their matrimonial home in 1976 and ceased coming home when she discovered he married another woman. During their marriage out of their combined effort they jointly purchased properties and developed them. She ran the Shop, Bar and farmed in Nzatani and sold farm produce in bulk, maize, beans, cowpeas, oranges etc.

By affidavit filed on 9th November 2010, she deponed that their original matrimonial home deteriorated beyond habitation due to neglect and/or lack of maintenance by the Respondent. She shifted her matrimonial home to Migwani Trading Centre Plot 20.

Meanwhile, the deceased established his permanent residence in Kileleshwa where he lived with 2nd wife. He also established another farm house in Mbakini village for the 2nd wife and he allocated and concentrated finances towards development of the same.

In the end of 2010, the deceased sent their eldest son, DW1 to her matrimonial home now Migwani Plot 20 and he changed locks of her home while she was away in Nairobi seeking medical treatment. She pleaded that at 71 years of age, she was sick with diabetes and required continuous treatment which was costly and was rendered destitute.

She regained entry to the house vide of 29th November 2010 by Honorable Justice L. Kimaru that the Applicant continues to reside in the matrimonial Migwani Market including shop and Bar pending hearing and determination of the suit. The hearing of the matter begun, the 1st wife testified and thereafter the matter was removed the Cause List and the Court file disappeared.

In the meantime by an application filed on 9th November 2012, 1st wife deponed that she was unable to cultivate in Nzatani –Parcel 318 her original matrimonial home, due to interference by the Respondent. The Respondent refused her to graze livestock in Mbooni parcel 313 and transferred through DW1 livestock to Mbakini.

The deceased filed detailed Replying Affidavit to OS 39 of 2010 on 29th April 2011 and the gist of it is that he  explained the circumstances but mainly that the 1st Wife was the main cause of disharmony in the family and the properties could not be divided during his lifetime.

The video recording that this Court watched in the presence of Parties and Counsel on 20th July 2018, in the presence of 1st wife, children and grandchildren except those who were abroad, at Karen Hospital in 2010,he  depicted the deceased as an ailing person but determined to restore unity in the family, welcoming all to Kileleshwa residence stating that Phiata 1st wife was/is his wife and would cater for her medical expenses at Karen Hospital and all should start afresh and leave what happened in the past.

The Akitutu Clan vide report annexed of 26th November 2010, also held a family meeting to resolve the dispute.

With regard to the 2nd wife, it seems from the pleadings that the deceased had a fruitful, loving and caring union, she seemed to accept his children from 1st marriage, unfortunately she died in 2008.

The totality of the evidence above is that the deceased had a difficult relationship with 1st wife characterized by deception as alleged against her, neglect and desertion as alleged against him and though not divorced were estranged. Despite attempts to reconcile, the same failed to materialize.

Unfortunately, from the evidence on record and additional pleadings and evidence obtained under Section 78 of Civil Procedure Act, seemingly, the situation between the deceased, 1st wife and 2nd wife adversely impacted on the children of the 1st house except DW1, they watched helplessly as they grew up ignorant of the circumstances, their mother struggling and lonely. They lived with the deceased and were educated but as they grew up they painfully saw their deteriorate in age, health and general wellbeing and when they were older and able helped her the best way they knew how perhaps not always correctly.

On the other hand the children of the 2nd house suffered resentment from the 1st family as they were deemed to be more advantaged and in close proximity to the deceased to their disadvantage. The 2nd family was doing better, seemingly closer to the deceased, had abundant attention and support; they lived with the deceased and 2nd wife on his tours of duty, he bought and developed land number 1498 Mbakini farm and developed the same at the expense of Mwingi/Nzeluni/318. The deceased bought and transferred 1498 Mbakini to Edward Muumbo (deceased) 1st son of 2nd wife. The 1st son of the deceased by 1st wife and children of 2nd family had /have access to the assets that comprise of the deceased’s estate as listed under Mwingi Viewpoint Co Ltd among others, and lived with him in Kileleshwa residence comprised of 4 apartments up to his death. DW1 had power of Attorney from the deceased, DW4 drove and worked for his father.

This was the genesis of conflict and acrimony between the deceased and 1st house except DW1 and between children of the deceased. The Appellants supported their mother and the 1st born and children of 2nd house supported their father. Hence the stalemate. The deceased was unhappy about the Court cases that were filed in Court, HCCC OS 39 of 2010 on division of matrimonial property and ELC 193 of 2014 where the Appellants sought to prevent the deceased from disposing Nzatani properties to disinherit them. The deceased also instituted criminal proceedings against 2nd& 3rd Appellants on theft of his livestock which was withdrawn and they reinstated the same.

The deceased wrote letters to the Appellants and cursed them. These are letters dated 26th October 2012, 8th November 2010 & 10th December 2010, 25th November 2010. Due to the intervention of elders; Akitutu clan/family meeting on 7th February 2015, Muumbo Family committee Meeting of 31st January 2015, Elders Meeting of 19th June and Akitutu clan meeting of 26th November 2010; all these efforts culminated with the letter of 27th January 2014 to DW5 Colonel Rtd Alphonse MutwayoMusyimi where the deceased stated as follows;

There is no doubt that your visit to my Kileleshwa residence on 9th January 2014 made it clear to you to understand I have nothing against my 3 children.

Lease inform your other Kitutu clan members who accompanied you to my Kileleshwa residence that I have confirmed in writing that I will fully support you in your endeavor to bring peace to my family.

Despite all that happened, the deceased tried to bring closure to the family dispute. Instead the children of the deceased have stepped into the shoes of their respective parents and continue zealously to protect each parent’s right and/or attempt to resolve the family dispute. In the process they have all used the deceased’s burial as means of settling scores instead of prioritizing a respectful and decent burial of their late father.

This Court states as follows; that the deceased, father of Appellants and 1st wife and 2nd wife who are also deceased were first and foremost human beings, then spouses and finally parents. As human beings they may have made mistakes that affected the family, but they passed on and the family can only move forward as the deceased pledged in the video recording, reconcile and live in harmony. Therefore priority shall be to bury the deceased.

3)  Where shall/should the deceased be buried, by who and how?

This Court cannot rely on the Will as it is contested, nor can it rely on verbal statements of the deceased to family members and elders, they are diverse wishes which this Court is unable to confirm or verify.

With regard to the Akamba Customary law; The Respondents relied on writings;

a) The Akamba in British East Africa by Gerhard Lindblom Chapter 6 pg 95 provides;

A burial and all ritual connected with death can only be carried out by old men atumia,the old men will dig the grave and the corpse is laid on a bier of stickscarried out by 2 atumia. Where a wife has been in due order separated from her husband and subsequently dies somewhere else, it is not necessary for a hut built by her to be shut up. Her husband has no longer anything to do with her.

With regard to the deceased’s eldest son; the eldest son and heir goes to the edge of the grave and scrapes down little earth with his foot.

In CIVIL APPEAL 233 OF 2007 MICHAEL MUSAU VS MAURICE MUSAU KITIVO VS MAURICE NDAMBUKIwhich held that Kamba customary law is not mandatory that the 1st wife of the deceased is buried  next to her husband.

This Court concedes this fact, and it depends on whether the deceased’s wishes are identified and confirmed, the circumstances and relationships in the specific case.

The Respondents relied on the case OF KIPLAGAT KORIR VS DENNIS KIPNGENO MUTAI CIVIL APPEAL 52 OF 2005where the Court held that the appellant was a stranger to the deceased at the time of the deceased’s death, their marriage did not exist. With respect, the deceased herein is to be buried by his children, his wives predeceased him and therefore the consideration of state of their marriages is not the only determining factor.

HCCC 2 OF 2014 ( GARISSA HIGH COURT)

NEEMA MULWA vs JOYCE MWANGO

The burial dispute involved 2 widows, the Appellant who was marred but estranged to the deceased and Respondent who lived with the deceased openly for several years till his death.

The Court granted the respondent to bury the deceased. The present case the wives predeceased the deceased the issue is where will he be buried?

The Appellants submitted as follows;

MUTEMI MULI MUNYAMBU V ANN MWIKALI (2011) EKLR

The deceased had a home in the compounds of both parties. The parties solemnized their marriage under Kamba customary law between 1979 and 1994 then they separated. The parties however did not divorce. The Court ordered that the plaintiff bury the deceased as it was not demonstrated that that would be repugnant to justice.With respect, the deceased herein is to be buried by his children, his wives predeceased him and therefore the consideration of state of their marriages is not the only determining factor.

JMK & ANOTHER V DMK [2013] EKLR

The Court stated that since the marriage had been dissolved , the spouse was not the closes to the deceased in legal terms according to the NJOROGE V NJOROGEcase. The court therefore ordered that the remains of the deceased be released to her three children to inter the same in line with her wishes.

JOSINDA KATUMBA KAMAU V ANNAH NGENDO [1998] EKLR

The plaintiff and defendant were both widows to the deceased

The Court held that since the deceased was a clan member of Mbariya Mbui, his remains were therefore to be buried at his matrimonial home of his clan.The Court also relied on the V.E Wambui Otieno case and cited it as the guide when deciding such cases.

VIRGINIA EDITH WAMBUI OTIENO vs JOASH OTIENO OUGO HCCC 4873OF 1986 stated that one’s customary law dictated who and where the deceased is buried, the deceased was to be buried by the clan in the ancestral land according to Luo customary law

JACOB BLASTO OKUMU & 4 OTHERS V CLARIS AUMA [2014] EKLR

The appeal was allowed and the appellants were allowed to bury the remains of the deceased next to the second wife on land registered in his name. Citing APELI vs BULUKU  2008 1 KLRthe most important rule is that  the wishes of the deceased person though not binding must so far as possible be given effect to.

ROWLAND AMULYOTO & 2 OTHERS V ALFRED AMULYOTO [2017] EKLR

The Parties in this case were the children to the deceased. The plaintiffs’ sought an injunction restraining the defendants from burying the deceased from any other place other than the matrimonial home. The order was granted and later disobeyed and the deceased already buried at a different place. The children in this instant case were divided and had not reconciled by the time the deceased had passed. The Court found the evidence that the deceased told only 2 of her 7 children her preferred place of burial as fabricated evidence. The Court allowed the application for exhumation of the deceased’s body and directed that the deceased be buried at her matrimonial home.

The Appellants cited the following literature on Kamba customary law

With regard to burial;

a) Burials by Makau Mbevi (August 10th 2013)

According to Kamba Culture, adult people should be buried in their ancestral land.

b) John S. Mbiti: Introduction To African Religion;duty of children to bury their parents and look after their graves.

c) Vyonna Bondi; Death and Burial in the African Context

d) K.Ndeti: Elements of Akamba Life:proclamations of the clan are binding.

The totality of the evidence is that Akamba customary law prescribes that deceased is buried in his ancestral home and woman at her matrimonial home unless, all family members agree to the alternative site where one bought land and lived. Although custom is not mandatory, if the wish of the deceased is not clear or known then the closest person(s) shall bury the deceased and it may be on ancestral land or his land as the family agrees. The relationship with the deceased’s wives though relevant is not the predominant factor.

The closest parties to the deceased ought to bury the deceased. In the instant case the children of Timothy Mwandi Muumbo.

The land Mwingi/Nzeluni/318 is registered in the deceased’s name, from the video recording there are developments on the land , an incomplete home, said to have electricity and ample space.

It is not disputed that the family graveyard site is on this land.

Various family members are buried here, the parents of the deceased, 1st wife and 2 sons ; one son by the 1st wife and the other of the 2nd wife.

It is and will remain accessible to all children and family of Timothy Muumbo family.

The land Thitani/Migwani /1498 according to 2 different agreements was bought by and for the deceased’s son, Edward Muumbo (deceased).It is registered in the deceased’s son’s name now for his widow and children.

The 2nd wife and her son are buried on the land.

It is developed according to the video recording, a home, evidence was led that confirms water and electricity are available and there was a grave already prepared.

It is private land and may not be accessible to all of Timothy Mwande Muumbo family.

DISPOSITION

Therefore, this on re -evaluation of evidence adduced before the Trial Court and considering the additional evidence adduced in Court, it is not possible to confirm deceased’s wishes and in reliance of Akamba customary law, I grant the order that the deceased shall be buried where he was born and his life journey began in his ancestral home;Mwingi/Nzeluni/318.

The 1st born son/child of the deceased Mwinzi Muumbo according to Akamba Customary Law shall lead all the children of Timothy Mwandi Muumbo with patience, inclusivity and consensus and they with respect to their eldest brother and now head of Muumbo family to remove/receive the body of the deceased, facilitate settlement of the outstanding Mortuary fees with family, clan well wishers, and identify the place/spot where the deceased shall be buried in Mwingi/Nzeluni/318. MwinziMuumbo shall work jointly closely with Johnstone  Kassim Muumbo, Alex Munyasia Muumbo and Billy Mbuvi.The team shall include Alphonce Mutwayo Musyimi (DW5) member Akitutu clan, Wilfred Mwinzi Mbuvi (PW7)Cousin to the deceased and Chair of funeral meetings. All Muumbo family shall/may participate and attend the funeral.

5. Who will pay/settle outstanding Mortuary fees and Costs of appeal?

I am guided by Articles 22(1) & (2) & 48 of Constitution of Kenya that every person has a right to file a matter in Court and access justice.

The Appellants and Respondents participated in Court proceedings in Trial Court and on Appeal and therefore irrespective of who instituted the suit and/or the outcome; the proceedings were to determine the burial of the deceased. Therefore no one should be penalized or condemned to pay Mortuary fees of up to Ksh 3 million.

The funds shall be sourced for payments for outstanding mortuary bill and preparation of resting the deceased at the burial site as follows;

a) Ksh 1. 2 million the deceased kept in the house as per evidence adduced by PW2 if available

b) Contributions made towards funeral arrangements and withheld to date;

c) All family members of Muumbo family and larger family and clan to contribute;

d) Fundraise and source funds from well wishers friends and colleagues of Muumbo family

e) And finally from the estate of the deceased.

6. Did the Trial Court err in law and fact in granting the Defendants/Respondents right to bury the deceased in Mbakini next to his 2nd wife according to his wishes and that the Plaintiffs to settle the Mortuary fees having caused the suit herein.

I find that the Trial Court arrived at its decision based on limited evidence and lack of jurisdiction to address the issue of the Will of the deceased. It is after the additional evidence that this Court arrived at the instant decision.

The Court order of 13th January 2016 is hereby set aside and all consequential orders.

DELIVERED SIGNED & DATED 6TH AUGUST 2018 IN OPEN COURT

M.W.MUIGAI

JUDGE OF FAMILY DIVISION OF HIGH COURT

IN THE PRESENCE OF;

MS MUIGAI FOR APPELLANTS

MS MUKURURI FOR APPELLANTS

MR MUSYOKA FOR RESPONDENTS

MS GITHOGORI FOR RESPONDENTS