Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — HIGH COURT
Burial dispute: Luo customary law and the burial of a married woman
Charles Onyango Oduke & Another v Samuel Onindo Wambi
Civil Case No 143 of 2009
High Court, at Kisumu
April 9,2010
Ali Aroni. J
Reported by Andrew Halonyere
Customary law – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased
father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial
of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life
time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on
burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the
deceased should be respected – Judicature Act (Cap 8)section 3 (2).
The first plaintiff was the brother of (Veronica), the deceased and the second plaintiff was the deceased adopted son.
The two plaintiffs brought a suit in the High Court challenging the claim of the defendant, who was the deceased’s
father-in-law, that he was entitled under Luo customary law to bury the remains of the deceased.
The plaintiff’s case was that the defendant and his family mistreated the deceased during her lifetime and as a result
of the mistreatment, the deceased had established a home in Kakamega and on many occasions declared to her family
and friends her wish to be interred on the said piece of land, in the event of her death. The plaintiffs further submitted
that although the deceased was a Luo by tribe and thus subject to Luo customary law, the defendant’s attitude did
not accord him the customary law right to bury her remains and she ought to be interred on her land in Kakamega
according to her wishes.
The defendant on the other hand denied the allegation that the deceased had made a wish to be buried on her piece of
land, arguing that if there was such a wish, it was not unequivocal as there was no other place to bury her other than
in Kamagambo, Rongo District. The defendant submitted that interring her on his land would be in accordance with
her personal law which was Luo customary law. The defendant further submitted that customarily the right to bury
the deceased rested on him and did not lie with the plaintiffs, arguing that the deceased and his son remained married
up to the time of her death. The defendant strongly contended that because his son was sick, as the head of the family,
the right to bury the deceased lay with him.
The main issue before the court was whether the deceased had left a wish stating where she wanted to be buried, if
the answer was in the affirmative and what was the effect of the said wish against Luo customary law on burial of a
married woman.
Held:
1. Section 3(2) of the Judicature Act (Cap 8) required that while applying customary law, the courts should ensure
that the same was not repugnant to justice and morality, and cases on customary law should be decided based on
substantive justice.
2. The Courts ought to give effect to the wishes of the deceased as far as possible unless for good reasons for example
if the wishes were contrary to custom.
3. The conduct and attitude of the defendant and the family were such that they were undeserving to bury the remains
of the deceased and they could not therefore be heard to claim a customary right.
4. Substantial justice would only be achieved if the wish of the deceased was respected.
5.Obiter “Although the defendant is undeserving to bury Veronica, his wish to bury her may be an attempt by him and
the rest of the family to make amends with the dead.”
The body of the deceased would be released to the First Plaintiff and the defendant or anyone of them for interment in
the Kakamega property in accordance with Catholic rituals as the deceased had directed.
Advocates
Mr. S. K’opot and Mr. A. Oyuko for the plaintiffs
Mr. C. Ayayo for defendant.
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