JURISPRUDENCE AFTER THE 2010 CONSTITUION
Lucy Kemboi v Cleti Kurgat & 5 others (2012) eKLR
Lucy Kemboi brought a suit against her in-laws seeking authority to arrange for the collection, burial and interment of the body of her husband the late Ambrose Kipkoech Kurgat at their matrimonial home at Kamariny, Keiyo Marakwet County.
According to Lucy, the deceased was her husband and after he had passed on, her, In-laws held meetings and made funeral arrangements without involving neither her nor her children. The meetings were held at her late husband's step-mother's house and she was not afforded any hearing and was only given information as to what had been decided. Lucy submitted that she only got to know that her in-laws intended to bury the deceased next to the grave of his late father through a defence filed by her in-laws after she had filed a suit in the Chief Magistrates Court. She also said that her late husband had a homestead and that she had constructed a house thereat together with her late husband. She stated that the homestead and house were located on a parcel of land, which piece of land was demarcated and given to her late husband by the deceased's late father and that it was upon that portion of land that she wanted to inter her late husband's remains. Lucy further stated that whereas her in-laws wanted to inter the remains at a grave site set apart by her late father in-law as a family graveyard, the said site was approximately two hundred (200) metres from her homestead and therefore she should be allowed to bury her late husband at the right place where she had built a house and established a homestead.
The defendants (in-laws) on their part said that their late father had set apart, a portion of the land as a graveyard, arguing that the burial site was outside the "Boma" of their late father and that their late father's remains, their mother's, their sister's and grandmother had been interred on that piece of land. The defendants also submitted that the alleged house built by Lucy and their late brother, was built for purposes of hosting their daughter's wedding, otherwise the deceased had a rented room in a place called Chembulet and carried on a business of a bar.
widow has right, just like that of her in-laws, to bury the remains of her husband, the High Court ruled. Justice Mshila held Article 27(3) and (4) of the Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground that a widow's right to bury the remains of her husband were provided for and protected by Article 27 (3) and (4) of the Constitution, in that a widow should not be discriminated upon by cultural practices.
It was the Court's view that though Keiyo customary law was applicable and that under the said customary law the clan together with the deceased brothers were responsible for the burial of the deceased, Lucy having been married to the deceased had a right derived from written law to bury the deceased.
The Court further was of the view that the rights of Lucy were provided for and protected by the Constitution, in that Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan to bury her husband's remains.
In answering the question as to where the deceased had established a home, the Court drew reference from the case of Apeli v Buluku C.A No. 12 of 1979 where it was held that "…a person wishing to be buried outside his father's homestead takes steps to have an acceptable and established home elsewhere…”. In view of that , the court observed that by conduct and by reference from the facts, neither the deceased nor Lucy had established a permanent home at Kamariny and that the fact that a temporary house had been built on the said portion of land did not confer ownership of the property upon the deceased. From the foregoing, Justice Mshila held that the deceased did not have a title to the portion of land at her alleged homestead as the estate was yet to be distributed nor had a Grant of Letters of Administration been taken out over their late father's estate. Thus by giving Lucy the body to inter at the alleged homestead would interfere with the other family members' rights to the property.
Ultimately, the Court ordered that the deceased's body be handed over to Lucy and her in-laws jointly or to any one of them for burial at the site set apart by the late father in-law and father respectively for burial.
PATRICK ODERA ALILA & Another v ROSE NYASEME & Another  eklr
On February 2012, the plaintiffs Patrick Odera Alila, brother to the deceased and Nicholas Stephen Otieno Nyaseme, the eldest son of the deceased went to court seeking orders restraining by temporary injunction removing, transporting or in any manner so dealing with the body of Joel Nyaseme Alila (deceased) lying at Montezuma Funeral Home other than for burial at Bandani village Kisumu County and an order be issued that Nicholas Stephen Otieno Nyaseme be allowed to participate in any deliberations, decisions and consultations regarding the manner and place of the burial of said Joel Nyasame Alila deceased and that order be made for the burial of Joel Nyaseme Alila (deceased) be done at no other place other than Bandani village within Kisumu County. On the grounds that:-
- The applicant is the eldest son of Joel Nyaseme Alila (deceased)
- The respondents have failed and or refused to involve his eldest son in the funeral arrangements of his deceased father.
- The eldest son of deceased has an inherent obligation under the Luo Customary Law and practices to be involved in his father’s rites.
- The respondents are now attempting to inter the body at Karen within Nairobi against Luo Customary Law and practices.
- The defendants are Rose Nyaseme widow of deceased and Moses Ouma a brother of the widow.
The plaintiffs stated that the deceased was the head of Alila family before his death. He was from a polygamous family of 4 wives and one husband. Deceased’s mother was the first wife of the father who is now deceased. All the deceased in that family had been buried in that family land. The family wishes that the deceased be buried in that village. The plaintiffs and defendants are all from Luo tribe and they practice Luo Customary law and practices. The deceased was born a Luo and he remained a member of Luo Community.
Nyaseme Alila ststed that it was his fathers wish to bury him prior to his death. This expressed wish was not written. The deceased was never actively involved in clan affairs. His clan is known as Kanywour which did not objected to the burying of deceased at Karen. The deceased sought elective seat for Gem Constituency in Siaya and regarded Gem as his ancestral home although he had established Karen home.
The court relied on the precedent in Njoroge –vs- Njoroge, where Justice Ojwang J stated:
“..In Social Context prevailing in this country the person who is first in line of duty in relation to the burial of any deceased person is the one who is closest to deceased in legal terms.”
The court also relied on Dr. Mbatha –vs- Dr. Mukita , where the court said
“..it is unlikely in the normal course of events he would have contemplated death and express wishes to where he wished to be buried. That is a matter to be proved in this case where there is no written instructions. “Customary laws are matters of fact and must await trial of action”.
The court said the Constitution grants any party aggrieved to approach the court for remedy and that there was no dispute that the applicants are son and brother of the deceased and that the balance of convenience favour them. The court granted the orders sought.
PETER ONGAGA ONYIEGO v MOKAYA MARONGA & another  eKLR
The applicant claimed that he was the lawful husband to the deceased since 1984 – till her death on October 2010 and that he has the right to bury the deceased. He wished to have her buried at his ancestral home in accordance with Kisii customs and traditions.
The Respondents are the father and mother of the deceased. They claimed they were entitled to bury the deceased as the biological parents. They denied that the deceased was married to the applicant who they referred to as a boyfriend.
The Respondents stated that prior to her death the deceased had communicated her wish to be buried at her parent’s home in Njoro. That she made a dying declaration to fellow nurses at Coast General Hospital, Mombasa. She was a matron at the hospital when she died.
The court stated that it was important to determine the deceased declared wish to be buried at a particular place before she died. The wishes of the deceased in this regard is important under the Constitution as there is a possibility that an oral Will as to the place of burial could possibly override the application of customary law on the burial of the deceased.
The court said that in the circumstances it was important that the question of the oral Will or wish as to burial by the deceased be determined at the place where she resided/lived for the last 7 years, worked and acquired personal property. It would be convenient to her colleagues, the nurses at the hospital and the FIDA officials to testify with least inconvenience in costs.
On a balance of convenience, it is easier for the Applicant to bring his witnesses to Mombasa to prove the existence of Customary Marriage and whether this gives him the right to bury the deceased whether the deceased had wishes on where to be buried or not and held that the trial required expedition trial to be at Mombasa.
J M K & another v D M K  eKLR
The deceased and the Respondent contracted a customary marriage and thereafter solemnized the same in church. The couple separated in 2002 and lived apart until 2009 when the deceased filed for divorce. The marriage was dissolved in 2011. Upon the death of the deceased the Respondent filed the case in the lower court. Intention was to bury the deceased claiming that she was his wife and that he had a right to bury her. On the other hand the Appellants, uncle and brother to the deceased claimed that the deceased had divorced the Respondent and that she wished to be buried at her land at Mutyangombe. E M and P K, deceased’s children also testified that their mother had wished to be buried at her land in Mutyangombe.
The appellants moved to court on appeal seeking to have the judgment and orders of the lower court be set aside and in its place the court to make orders that the deceased was formally divorced and therefore a free woman, the family of the deceased including the appellants and the children of the deceased to determine the deceased’s final resting place; the remains of the deceased be released to the appellants/her parents or children for burial.
The Respondent at the lower court had sought orders among others that the deceased was not validly married to the 1st defendant without refund of dowry in accordance with customary law and a permanent injunction restraining the defendants, their agents, servants or employees from collecting, burying, interring the deceased’s remains at the defendant’s home or any other place until compliance with Kamba customary law.
The lower found favour of the Respondent in the following terms:
“It is clear that the deceased and the plaintiff married under two systems. The customary marriage however preceded the Christian one and in this court’s view takes precedent especially in light of the latter subsequent customary marriage. The process/rites involved in renouncing a customary marriage are well spelt out and the same were never performed and in this court’s view the same remain valid and binding, a fact supported by evidence of the plaintiff”
The Appeal court stated that the deceased was married under one system of law, statutory law and that when it comes to burial disputes, it is personal law that comes into play. This is because there is no statute in Kenya that governs burials. It held that the deceased was legally divorced from the Respondent. In Njoroge v. Njoroge & Another  1 KLR the court held that:
“…the person who is the first in line of duty in relation to the burial of the deceased person is the closest to the deceased in legal terms. Generally the marital union will be found to be the focus of the closest chain of relationship touching on the deceased…”
The court held that the marriage between the deceased and the Respondent had been dissolved so the issue of spouse does not come in. Without a spouse, the first person(s)in line of duty in relation to the burial of the deceased and the closest persons(s) is her children followed by her parents and brother in that the remains of the deceased were to be released to her three children to inter the same at deceased’s land at Mutyangombe in line with her wishes.