Kamau v Muchiri; Matiru (Interested Party) [2022] KEHC 16997 (KLR)

Kamau v Muchiri; Matiru (Interested Party) (Civil Appeal E011 of 2022) [2022] KEHC 16997 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16997 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E011 of 2022

GWN Macharia, J

December 15, 2022

Between

Mary Thami Kamau

Appellant

and

Lucy Wambui Muchiri

Respondent

and

Beth Wangui Matiru

Interested Party

(Being an appeal from the judgment and decree in the Senior Principal Magistrate’s Court at Engineer in Civil Case No. E130 of 2021 delivered by Hon. H.O. Barasa (SPM) on 8th February, 2022)

Judgment

Brief background 1. The Appellant filed Civil Case No. E130 of 2021 against the Respondent at Engineer Senior Principal Magistrate’s Court. The gist of the suit was to stop the Respondent from burying the late KAMAU GACHOKA (hereafter ‘the deceased’) in Kinangop – Munyaka Area. The Appellant pleaded that the deceased ought to be buried in his ancestral cum matrimonial home at Ndumberi Kiambu on plot number Ndumberi/Ndumberi/2420. In the Plaint dated 23rd September, 2021, the Appellant sought judgment for what seemed to be temporary orders reproduced as hereunder:a.An order of injunction restraining the defendant, her agents and U servants from burying or interring the remains of the body of KAMAU GACHOKA and burying the same in Kinangop-munyaka pending the hearing and determination of the application and thereafter the main suit.b.An injunction restraining Nyayo Ward Hospital from releasing the remains of the body of KAMAU GACHOKA pending the determination of the application.c.Costs of this suit.d.Any such other or further relief as this court may deem fit and just to grant.

2. The Respondent lodged a Defence in which she denied the claim and contended that the Appellant had not established a case for the grant of an injunction restraining her from burying the deceased, who was her lawful husband, on their matrimonial property known as Nyandarua/Muruaki/6734.

3. Upon trial, the trial court dismissed the suit with no orders as to costs and ordered that the mortuary fees be borne by both parties equally.

4. Aggrieved by the said decision, the Appellant lodged an appeal in this court vide a Memorandum of Appeal dated 10th February, 2022 on the grounds that the learned magistrate erred in law and fact by:1. Holding that the late Gachoka Kamau had made his wishes as regards his place of burial i.e. at Chamber, Engineer.2. Completely disregarding the evidence of PW3 who is the daughter of the late Gachoka Kamau.3. Holding that the Respondent and the late Kamau Gachoka were married under Kikuyu Customary Law.4. Holding that the Appellant's home was on land parcel number Ndumberi/Ndumberi/3944. 5.Holding that Nyandarua/Muruaki/6734 was the Respondent's matrimonial home.6. Failing to take into consideration the Kikuyu Customary Law relating to the burial of a Kikuyu man.7. That the judgment of 8th February 2022 demonstrates apparent biasness in favour of the Respondent.

5. The Appellant prays for the following orders in her appeal:a.THAT this Honourable Court be pleased to issue an order directing that the remains of the late Kamau Gachoka be released to the Appellant for burial at Ndumberi, Kiambu by his eldest son Paul Ngugi Kamau or his brother Josephat Njuguna Gachoka.b.THAT this Honourable Court be pleased to issue an order that the Respondent and the Interested Party herein participate in the burial of the late Kamau Gachoka at Ndumberi, Kiambu.c.THAT the costs of the instant appeal and mortuary expenses be shared equally by all parties herein.

Summary of Evidence 6. This being a first appeal, it is the duty of this court to review and reevaluate the evidence on record afresh and draw its own conclusions although due allowance must be given to the fact it did not have the benefit of seeing or hearing the witnesses. See Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.

7. PW1, Mary Thami Kamau, the Appellant herein adopted her statement and further statement dated 23rd September, 2021 and 15th October, 2021 respectively as part of her evidence in chief and produced the plaintiff’s list of documents dated 23rd September, 2021 and further list of documents dated 15th October, 2021 as exhibits 1 to 8. PW1 testified that she lives in Ndumberi Kiambu on land parcel no. Ndumberi/Ndumberi/3942. That she was the legal wife of the deceased having gotten married to him in 1989 although they did not conduct a church wedding. They were blessed with two children but she came with three others who the deceased accepted and took in as his own. It was her testimony that the Respondent who had been cohabiting with the deceased, had made arrangements to bury him on her parcel of land in Munyaka Kinangop without her consent. She stated that the ancestral and matrimonial home of the deceased where he should be buried is in Ndumberi Kiambu where she has lived with their children for the last thirty two years as well as her late mother in law Grace Wanjiru Gachoka.

8. PW1 testified that the deceased left their matrimonial home in the year 2000 because he got annoyed after PW1 resisted his attempts to sell the land where they live on since it belonged to his late father and there was a curse that no one should sell it. PW1 did not know where he went and the deceased never asked her to leave their matrimonial home. She put a caution on the land so that the deceased could not sell it. As far as she was concerned, the land still belongs to the deceased since she has never seen anyone else there.

9. In cross examination, PW1 stated that she was married under Kikuyu customary law. The deceased took her to his place but there was no ceremony. She confirmed that land parcel No. 3942 which she lives on is one of the three portions of Title No. Ndumberi/Ndumberi/2420. She stated that according to an official search dated 22nd October, 2021, the deceased was still the registered owner of parcel No. 3942 and there still exists a caution on the title but the restriction which was registered thereon was removed. She was not aware whether the deceased sold title No. 3944 and she had never seen an Agreement dated 31/1/2019 in respect to the sale of Ndumberi/Ndumberi/3944. It was also her testimony that the deceased was called James Kamau Gachoka. She never threatened him and she is not aware of any assault report or case against her.

10. Upon re-examination, PW1 stated that the deceased admitted that he was her husband in Environment & Land Court (ELC) Case No. 76 of 2016. He took her to court because he wanted to remove the caution and the case is still ongoing. John Mbugua Mukami who is registered as the owner of parcel No. 3943 is a son to the deceased’s sister. The deceased did not sell the land to him. He transferred it to him. She has land on which they can bury the deceased according to Kikuyu Customs.

11. PW2, Josephat Njuguna Gachoka was a step brother to the deceased. He testified that they were born in Subukia but their family moved to Ndumberi in 1952 and have lived there ever since. Their father and the deceased's mother were buried in Ndumberi. The deceased was married to the Appellant whom they lived with in Ndumberi Kiambu under Kikuyu Customary law. The relationship between the deceased and the Appellant was good before the deceased came to Engineer. The deceased wanted to sell the ancestral land but his mother objected, that is why he moved to Engineer. The Respondent is not known to him as the deceased never told him that he married a second wife. He stated that they have no relatives in Engineer and urged that the deceased be buried on their ancestral home in Ndumberi.

12. In cross examination, PW2 stated that the deceased had only one wife that he knew of. He confirmed that the deceased wanted to sell the land they were given by their father but his late mother objected and that is when he left Ndumberi. The deceased told him that he had bought a plot in Engineer but he has never been on the land. The deceased used to go to Ndumberi. As a family, they want the deceased to be buried in Ndumberi. Even the deceased wanted to be buried at Ndumberi where his father, mother and sisters were buried. On re-examination, PW2 stated that he had not been shown any will stating that the deceased wanted be buried at Engineer.

13. PW3, Teresia Kamu Gachoka was the deceased’s step daughter. She stated that she has known the deceased since she was a child. The deceased left their home around the year 2000 because he wanted to sell land where they live but PW1 objected. He never went back to live with them but would visit Ndumberi. They live in Ndumberi which is on their ancestral land. She said she never saw their grandfather but knew her grandmother who was buried on the same family land. That they still live on the land to date and that the relationship between PW1 and the deceased was good.

14. During defence hearing, DW1 Lucy Wanjiku Kamau, the Respondent herein, testified that she lives in Engineer Njabini Location. That on 25th September, 2021, she received orders stopping her from burying her husband, Isaack Kamau Gachoka who is the deceased herein. She used to live with the deceased at Muruaki on land parcel No. Nyandarua/Muruaki/6734. They started living together as a married couple in 2013 although he had told her that he had a family in Ndumberi. The deceased sold parcel No. Ndumberi/Ndumberi/3944 where the Appellant currently lives at Kshs. 2,400,000/- as evidenced by the Agreement dated 31/1/2019 while parcel 3943 was given to John Mbugua. She got to know the Appellant when they were called by the Lands Board to discuss the sub-division of land. The deceased told the board that they were his wives. The deceased told her that his relationship with the Appellant was not good and that his son used to threaten and assault him. They had threatened to get his head and even broke his hand at one point. The deceased made a Report on 18th May, 2012 which she produced in court alongside photographs showing that the deceased was injured. There were cases that were ongoing between the deceased and the Appellant. The deceased told her that the Appellant had placed a caution on Ndumberi/Ndumberi/3942 to prevent him from selling the same and the caution has never been removed.

15. DW1 testified that she is the one who was living with the deceased when he died. That the deceased got sick on 16th September, 2021 and died four days later at Engineer District Hospital. His body was taken to the mortuary. DW1 called John and informed him that the deceased had passed on. John is the one who informed the Appellant who later called her to confirm. The Appellant went to her home but they failed to agree on where the deceased would be buried. She stated that she has no problem involving the Appellant in the burial arrangements but wants the deceased to be buried on Nyandarua/Muruaki/6734 as that was his wish.

16. In cross examination, DW1 confirmed that she is also known as ‘Lucy Wanjiku Muchiri’, the name which appears on the agreement of 31/1/2019. She stated that the title for Ndumberi/Ndumberi/3944 is in the names of three people. The deceased told her that he left Kiambu in 2002. Before they started living together, he lived in Muruaki with Beth, the Interested Party herein. She never got any child with the deceased. They got married under Kikuyu customary law although she has never been to the deceased’s home. However, she had been to Ndumberi with the deceased and he showed her the land while they were on the road so she knows the sizes of the different parcels.

17. Further, she confirmed that it is Ndumberi/Ndumberi/3942 and not 3944 that was given to John Mbugua and the Appellant herein. She confirmed that the photographs that the deceased showed her were taken in August 2011. The deceased put his wishes down in writing and left the Will with a certain doctor. It was also her testimony that there was an order that the Appellant should not bury the deceased on LR. No. 3944. Further, she stated that the land that the deceased wanted to give to the Appellant was LR. No. 3942 and admitted that if the Appellant was to burry him thereon, she will not have breached the order. She also admitted that the deceased has no relatives at Engineer.

18. In re-examination, she stated that her national identification card bears the name Lucy Wanjiku Muchiri. She stated that Ndumberi/Ndumberi/3942 is in the name of the deceased, Ndumberi/Ndumberi/3943 is in the name of John Mbugua and Ndumberi/Ndumberi/3944 is in the name of Kamau Gachoka and Maria Wangui. The deceased told her that the Appellant lives on LR No. 3944.

19. DW2, Gitau Harrison Mwangi Watoro described himself as a close confidant of the deceased since 1996. He testified that he met the deceased in 1996 in Ndumberi. The deceased used to live in a rental house. He had a home at Ndumberi but never lived there. The deceased moved out of the rental house later on and bought a plot but they did not lose touch with each other. The deceased later sold off the plot and moved to Engineer where he bought a plot and was living on before his death. DW2 testified that he got to know the Respondent when the deceased married her. He accompanied the deceased to her home in Nakuru for marriage ties. He was he deceased’s driver during his last days and he is one of the people who took him to hospital. The deceased lost contact with the Appellant long time ago and had been staying with the Respondent. The deceased informed him that he had sold his land at Ndumberi and his wish was to be buried at Muruaki.

20. In cross examination, DW2 stated that he was at Ndumberi when the deceased sold the Appellant’s land. He also stated that he was with many other people when they visited the Respondent’s home for marriage rites.

21. The Interested Party herein, Beth Wangari also testified in the trial court. It was her testimony that she lives in Muruaki. The deceased had a wife but they separated. She got married to the deceased in the year 2000 and he paid dowry to her parents. They lived in Ndumberi and later on moved to Muruaki where they rented a house. They bought plots of land at both Ndumberi and Muruaki. The plot in Muruaki was land parcel no. Nyandarua/Muruaki/6734 on which they constructed a house. When they separated, the deceased brought another woman whose name she does not know to the house. She placed a caution on Nyandarua/Muruaki/6734. It was her wish that the deceased be buried in Kiambu.

Submissions 22. The appeal was canvassed by way of written submissions.

The Appellants submissions 23. The Appellant submitted that the deceased never expressed his wish as to the place of his burial. In her view, this position is informed by the fact that the deceased did not leave behind any Will wherein such wishes were expressed and the Respondent’s claim that the deceased confided in her about his wish to be buried at Engineer is also unsupported by any evidence. Further, it was submitted that neither the Respondent nor her witness DW2 disclosed the place or the specific dates or the circumstances surrounding the expression of the said wishes. To her, the Respondent’s allusion to such wishes by the deceased was merely a ploy to hoodwink this Court. Reliance was placed on the case of Florence Maweu & another y Bernard Mutinda Maweu & 2 others [2019] eKLR to support this submission. She further contended that the holding by the trial court that the wishes of the deceased could be inferred from his decision to buy land at Chamber is farfetched and speculative.

24. Further, the Appellant contended that the trial magistrate exceeded his jurisdiction in determining the issue of the marriage status of the Respondent. It was her submission that the trial court was not sitting as a succession/family court and thus the learned magistrate should have restricted himself to adjudicating on the burial dispute only. She argued that the issue of the purported marriage between the deceased and the Respondent cannot be determined in such a casual manner especially in the absence of any evidence in support thereof. In her view therefore, the trial court’s determination that the Respondent was a wife to the deceased was made prematurely and should be set aside by this court. Further, she stated that in any evident, the Respondent was and has never been a wife to the deceased and their cohabitation cannot be regarded as marriage.

25. Additionally, the Appellant submitted that the applicable customs in this case was the Kikuyu customary law. Relying on the cases of Lucy Wambui Maina v Dickson Muhia Mutty & 2 others [2007] eKLR, Samuel Mungai Mucheru & 3 Others Vs Anne Nyathira [2014] eKLR and Njoroge v Njoroge & Another [2004] 1 KLR 611, she stated that under Kikuyu customary law, a man is usually buried by his eldest son or his brothers. The Appellant submitted that the deceased's clan is in Ndumberi, Kiambu and he was blessed with three sons who are all currently adults of sound mind as well as brothers such as PW2. For that reason, the Appellant urged this Court to release the deceased's body to her so it can be buried by PW2 or his eldest son in their land in Ndumberi, Kiambu.

26. Moreover, the Appellant submitted that the trial magistrate’s finding that the deceased could not be buried in Kiambu, because there were issues regarding the land in Ndumberi, Kiambu, was extremely erroneous and not in tandem with the evidence on record. She maintained that land parcel number Ndumberi/Ndumberi/3942 on which she proposes to bury the deceased belongs to her, is registered in the name of the deceased and no other person is laying claim over it. She contended that the biasness of the learned magistrate is evident in the fact that he allowed the Respondent to bury the deceased on Nyandarua/Muruaki/6734 registered in the name of the deceased and denied the Appellant the opportunity to bury the deceased on Ndumberi/Ndumberi/3942 which is also registered in the name of the deceased.

27. It was the Appellant’s further submission that the fact that the deceased lived away from his ancestral home for a considerable period of time did not exempt him from the Kikuyu customary law. In support of this proposition, the Appellant cited the decision of the Court of Appeal in Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another [1987] eKLR.

The Respondent’s submissions 28. On the other hand, the Respondent submitted that she was a legal wife of the deceased. She argued that her testimony and that of DW2 to that effect was not controverted by either the Appellant or the Interested Party herein. It was the Respondent’s submission that the wishes of the deceased to be buried in Muruaki upon his death were corroborated by the evidence of his driver and confidant DW2. Further, that the deceased’s wishes were evident from his conduct of disposing his ancestral land NDUMBERI/NDUMBERI/3944 and purchasing and establishing a home in where he lived with the Respondent NYANDARUA/MURUAKI/6734 until his demise.

29. The Respondent relied on the cases of Apeli v Buluku [1980] eKLR and Jacinta Nduku Masai v Leonida Mueni Mutua & 4 Others [2018] eKLR for the proposition that if the deceased has left directions as to the disposal of his body, effect should be given to his wishes as far as that is possible. In her view, if the deceased wanted to be buried at his ancestral home on land parcel number NDUMBERI/NDUMBERI/ 3944, he would have communicated this intention during his life time or while on his death bed, to either the Appellant, his son and or his brother.

30. Further, the Respondent urged the court to take note of the fact that she informed the Appellant and the Interested party that the deceased had been taken ill but they never bothered to pay him a visit during that time. She also contended that court should note that the deceased had an estranged relationship with both the Appellant and the Interested Party and had long abandoned their matrimonial homes. In her view therefore, the learned magistrate did not err by holding that NYANDARUA/MURUAKI/6734 was the matrimonial home of the deceased. Further, it was her assertion that she had duly demonstrated that she was the one in the closest proximity to the deceased as at the time of his death as per the holding in Ruth Wanjiru Njoroge v Jemimah Njoroge & Anor [2004] eKLR.

31. Additionally, the Respondent submitted that the trial magistrate cannot be faulted for failing to take into consideration the Kikuyu customary law relating to the burial of a Kikuyu man because the Appellant did not call any expert to prove the existence of such customs. In support of this submission, she placed reliance on Nyariba Nyankomba v Mary Bonareri Munge [2010] eKLR. Lastly, the Respondent contended that the Appellant’s attempt to impute bias on the part of the trial magistrate was in bad faith and baseless hence should be entirely disregarded by this court.

Analysis and DeterminationThis court has carefully considered the grounds proffered, the Record of Appeal as well the parties’ respective written submissions on the appeal. I have demarcated the issues arising for determination to be as follows:a.What law is applicable to burial disputes?b.Did the deceased express his wish on where to be buried?c.Who has the right to bury the deceased between the Appellant and the Respondent in the circumstances?d.Whether the appeal is merited.

What law is applicable to burial disputes?** 32. There is no codified law in Kenya that specifically governs burial disputes. In instances where there is no proof that the deceased expressed his wishes on where he would like to be interred, courts resort to customary law, subject to the qualifications of Section 3(2) of the Judicature Act, CAP 8 of the Laws of Kenya which provides as follows:“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."(emphasis added)

33. The Court of Appeal in SAN v GW [2020] eKLR while appreciating the lack of legislation on burial matters stated as follows:“In burial disputes, the two questions that will always arise are, who has the right to bury the deceased and the place of burial. Customary law has been held to be the applicable personal law regulating burial disputes in Kenya. See Virginia Edith Wamboi Otieno vs. Joash Ochieng Ougo & another No.4), (1987) KLR 407 (the SM case) and Kandie & 2 others vs. Beatrice Jepkemoi Cherogony (2002) 2 KLR 613. But since customary law exists in almost all ethnic groups in Kenya with a homogeneous value system and the customs vary from one ethnic group to another means that the resolution of burial disputes will depend largely on the peculiar circumstances of each case.…In Kenya, to resolve burial disputes, the courts have variously resorted to customary law, common law, marriage law, succession law, human rights law, land law and other bodies of personal law. Customary law is applied by dint of Section 3(2) of the Judicature Act … (emphasis mine)

34. Are Kikuyu customs applicable to this case? There is no dispute that the deceased as well as the parties claiming the right to bury him are all Kikuyus hence it is safe to assume that they are all governed by the same customs. It is also not disputed that the deceased’s ancestral home was in Ndumberi Kiambu where his parents were buried and that he had adult sons and brothers in the said place. However, it is trite that the existence of any custom and its application must be proved if the court is to place any reliance on it. I find guidance in SAN v GW (supra) where the Court of Appeal stated that:“To prove custom, by section 51 of the Evidence Act, evidence of its existence must be called to provide the juridical and philosophical basis. That was the ratio decidedi in Nyariba Nyankomba vs. Mary Bonareri Munge [2010] eKLR where the High Court said that:“Time and again, it has been stated that in cases resting purely on customary law it is absolutely necessary that experts versed in the customs be summoned to testify so as to assist the court reach a fair verdict since the court itself is not well versed in those customs and traditions”.

35. This court notes that no expert witness was called to testify before the trial court on how to determine the place of burial of a Kikuyu man and particularly to the effect that a kikuyu man ought to be buried by his eldest son or brother. For that reason, the learned magistrate cannot be faulted for failing to take the said custom into consideration.

Did the deceased express his wish on where to be buried? 36. The general rule is that the wishes of the deceased on how his remains should be interred, although not binding on his family, should be given effect provided they are not contrary to customs or law. In Samuel Mungai Mucheru & 3 Others vs. Ann Nyathira [2014] eKRL, Musyoka J. observed:“It has been stated that there is no property in a dead body to be disposed of by the testator at will. Whatever wishes the testator expresses in his will are not binding on the family. This position was stated by Law JA in Apeli vs. Buluku [2008] 1 KLR (G&F) 873, where he said that there cannot be property in a dead body and a person cannot dispose of his body by will. The wishes of the deceased, though not binding must be, so far as practicable be given effect, so long as the same is not contrary to custom nor contrary to the general law or policy. Kwach JA made similar remarks in in Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi Court of Appeal civil appeal number 66 of 1984, where he held that an executor’s duty is to give effect to the deceased’s wishes in relation to the disposition of his corpse as far as practicable. He is not bound to give effect to those wishes if they are either impracticable or in conflict with the personal law.”

37. In this case, the Respondent and DW1 testified that the deceased wished to be buried in Muruaki upon death. During her cross-examination, the Respondent stated that this wish was contained in a Will which the deceased had left with a lawyer. The Will was not tendered in evidence and the lawyer was not called to testify. In the premises, this court finds that there was no evidence that the deceased wished to be buried in Muruaki.

Who has the right to bury the deceased between the Appellant and the Respondent in the circumstances? 38. This issue turns on the question of how the two parties who are claiming the right to bury the deceased were related to him. In SAN v GW (supra), the Court of Appeal stated 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.”

39. Both the Appellant and the Respondent claim to be the wives of the deceased. This calls for an interrogation of their marital status to the deceased. From the record, it is clear that the Appellant’s position as the first wife of the deceased is not disputed. I will therefore only dwell on whether the Respondent was the deceased’s wife as claimed. In her testimony, the Respondent stated that the deceased married her under Kikuyu Customary law in the year 2013 although she did not provide any proof. She however stated that she had never been to the deceased’s ancestral home in Kiambu.

40. DW2 testified on the marriage of the deceased and the Respondent. He testified that he got to know the Respondent when the deceased married her as he accompanied the deceased to her home in Nakuru for marriage ties.

41. PW2, the deceased’s brother testified that the deceased never told him that he married another wife. Notably, however, none of the witnesses disputed the evidence by the Respondent and DW2 that the deceased had lived with the Respondent in Muruaki since 2013 until his death in 2021. In view of the uncontroverted evidence of prolonged cohabitation, this court holds the view that a customary marriage between the deceased and the Respondent can be presumed in the circumstances. In Hortensiah Wanjiku Yawe v The Public Trustee, Civil Appeal No. 13 of 1996 (unreported), the court observed that the common law doctrine of presumption of marriage does not depend on the law or any system of marriage. It is simply an assumption based on very long cohabitation and repute that the parties are husband and wife.

42. Having found that the Respondent was also a wife of the deceased, the next task is to establish which of his wives was the closest to him. In SAN v GW (supra), the Court of Appeal stated:“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. Regarding this last limb, the Court of Appeal in Samuel Onindo Wambi vs. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR expressed the following view:“…A person’s conduct to a deceased person can extinguish the right of that person of burying the remains of the deceased. The appellant did not show any family closeness with the deceased when she was alive. Though he said that he used to visit the deceased and that he mobilized his siblings to build a house for her at Kibos there was no credible evidence to prove so. (sic). The fact that he was the deceased’s first-born son did not give him an automatic right to bury her even if Luo customary law dictates so. The court has to consider all the circumstances of the case and the justice of the case…”.

43. From the evidence on record, it is clear that the deceased and the Appellant herein were estranged in early 2000 when he left his ancestral home in Kiambu where the Appellant resides. This was about twenty (20) years prior to his demise and although the Appellant stated that their marriage was not dissolved, she admitted that she never bothered to find out where he went. The deceased moved on and married the Interested Party herein in the year 2000 and moved with her to Muruaki in Nyandarua. At Muruaki, he bought a plot of land and established a home in which he lived with the Respondent upon separating with the Interested Party, until he met his death. It is also evident that he hardly visited his ancestral home and this much is clear from the evidence of the Appellant and PW3. Muruaki became his new home and thus I am unable to see how the deceased would want to be buried in a place he lost touch with for over twenty yeas.

44. In the premises, I find that the Respondent who lived with the deceased up until his last days was his closest spouse and thus, has the right to bury him.

Conclusion 45. Consequently, this appeal lacks merit and is hereby dismissed. I order and direct that:a.The deceased’s body be released to the Respondent for burial.b.The Respondent shall involve the deceased’s immediate family members consisting of his other wives and children as well as his brothers and sisters in the funeral arrangements.c.Other members of the deceased’s extended family who wish to participate in the same and/or attend his burial are at liberty to do so.d.The deceased shall be buried on his parcel of land namely NYANDARUA/MURUAKI/6734. e.The mortuary fees shall be borne by both parties equally.f.There are no orders as to costs.

Dated and Delivered at Naivasha This 15thDecember, 2022. G.W.NGENYE-MACHARIAJUDGE.In the presence of:1. Mr. Shisanya for the Appellant.2. Mr. Kamani for the Respondent.3. No participation for the Interested Party.