1. Burial disputes: when family cannot agree on where to lay to rest the remains of their kin. When family will not even discuss the issue among themselves. Yet, among some communities, it does not matter. It is accepted that it is those among whom you get the last call/die, who have the duty to bury your body.
2. I delivered my judgment in this matter on 15/4/2024.
3. It was my finding from the evidence before me that the perfect resting place for the late Joseph Katama (deceased) was his mother’s home.
4. Immediately I delivered my judgment the issue was raised orally that over time the ancestral land had been sold and there was nowhere there where the deceased could be buried.
5. An application for review was filed.
6. Acting on the principles of Article 159(2) (c) and (d) of our Constitution, I gave the parties the opportunity to agree on a burial place for their person. The Constitution states;
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a);
(b);
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities;
7. The result was this mediation report which I quote;
MAK/MED/E008/2024 ARISING FROM E035 OF 2023
TO THE DEPUTY REGISTRAR MAKUENI LAW COURTS
I BEATRICE M. NZOU having been designated as the mediator in this action and having conducted mediation between the parties have not reached a settlement. The mediator wishes to report as follows:
1. That: On 24th April 2024 I was called by madam Elizabeth Mali, (Staff Makueni Court) and informed me of an urgent case that needed to be handled with urgency before 2nd May 2024. We agreed to have a mediation session the following day the 25th April 2024 starting at 9:30 am. That message was passed to all the parties who agreed to attend court. Parties present during the telephone call were:
Maria Kimonyi Itute 0712…
Michael Masaku Mutisya 0706…
Daniel Kyumwa Mutisya 0729…
Alice Ng’amweu Makoka
Mutevu Kituku 0757…
Bernard N. Katama 0722…
Andeonicus M. Katama 0716…
Josephine N. Joseph 0703...
2. That: On 25th April 2024, I was in court waiting for the parties from 9:30 am up to 1:20pm. The plaintiff parties present were Bernard Katama, Josephine Joseph, Androcicus Katama and Eunice Kimeu. The defendants did not attend court.
3. That: On 26th April 2024 I informed the parties through a message informing them of a second mediation session on 29th April 2024, starting at 12 noon. Same message was sent to the defendants’ lawyer advocate Elizabeth Isika to alert her client.
4. That: On 29th April 2024, I was in court from 12 noon up to 1:39 pm. The plaintiffs attended court (see list of attendance for the 29th April 2024) but the defendants did not attend court.
5. That: The file is returned to court for determination of the burial site for the late Joseph Katama.
SIGNED
BEATRICE M. NZOU MAC/08/2017
29TH APRIL 2024
8. The application for review is dated 16/4/2024 brought under Order 45 Rule 1(a) of the Civil Procedure Rule, sections 1A, 1B and 3A of the Civil Procedure Act.
9. The applicant states therein that the so called ancestral land which this court was led to believe existed was determined in a judgment on 24/1/2024 in ELC Case no. E021 of 2020 to belong the one Elijah Kavivya Mutisya. In the circumstances this court is urged to review its judgment and allow the deceased to be buried on his own portion of land on LR 558 which does not belong to the deceased’s divorced wife.
10. The application is opposed by 1st respondent on the ground that the brothers of the deceased have told her that the ancestral land is still available and that she the 1st respondent was not a party to the ELC 21 of 2020. That in any event the said Elijah Kavinya who was a party in the lower court matter never told the court the land was his.
11. That the applicant and his uncle appear to be in agreement that there is no ancestral land where deceased should be buried – then she should be allowed to bury her husband where he lived till he died.
12. It is submitted that the basis for this court’s rejection of the proposal to have the deceased buried on parcel No. 558 was stated as follows: - the deceased left his matrimonial home and went to live with the 1st defendant and wrote down in a document that he did not wish to be buried in the home…” It is submitted that the respondent disowned the said document “Will” dated 29/8/2022 by filing a citation in which she stated that the deceased died intestate. It is submitted that she is guilty of approbation and reprobation – something abhorred by the courts as demonstrated in Republic –vs- Institute of Certified Public Secretaries of Kenya Ex Parte Mundia Njeru Geteria – as being conduct amounting to abuse of the court process.
13. It is submitted further that Plot No. 558 is not the property of the deceased’s divorced wife – and there is a difference between where the deceased wished to be buried and where the deceased did not wish to be buried. That the deceased subdivided his land and left a portion for himself – which did not belong to the 1st wife but to himself within Plot no. 558.
14. The applicant is opposed to burial in a public cemetery as that would be an affront to the deceased’s right to dignity as he was a man of means – and the applicant queries:-
“How could any of the parties master the lack of shame and respect to dump his body at a public cemetery and then go back to the parcels he had freely given to them?”
15. It is further submitted the circumstances with relation to plot No. 2214 have not changed.
16. It is submitted by the Counsel for the respondent that there was no new evidence to warrant the order sought for review. Court was referred to Order 45 Rule 1 Civil Procedure Rule, section 80 Civil Procedure Act and Republic –vs- Public Procurement Administrative Review Board & 2 Others [2018] e KLR with respect to the jurisdiction and scope of review as being
I. New and important matters or evidence which was not available and despite the exercise of due diligence was not available to the applicant.
II. Mistake or error on the face of the record.
III. Any other sufficient reason.
17. It is submitted that Elijah Kavinya never told the lower court that the land in Kathonzweni was no longer ancestral.
18. On the alleged approbation /reprobation by the respondent, on the alleged will by the deceased, it is submitted by the respondent that the applicant rejected the said will but they submit that the majority of the family wished the deceased to be buried on Plot No. 558 Kiunguani settlement scheme.
19. It is also submitted that an application for review should not re-open the matter afresh – see Evan Bwire –vs- Andrew Aginda cited in Stephen Gitua Kimani –vs- Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] e KLR.
20. It is submitted that the above limitation is binding to the court.
21. It is further submitted that when the court directed parties to mediation on the place of burial – the respondent submitted through a letter to her counsel the following proposed areas which were not responded to:-
- The home of Elijah Kavinya if he was agreeable.
- The home of Alice Ng’amwe Makola, deceased’s sister if she was agreeable.
- The cemetery.
22. It is submitted further that the burial site should not have a land dispute about it – as was held in Re Burial of Musa Magondu Keya (Deceased) [2021] e KLR and that the place must be accessible to all the parties.
23. It is submitted that since the Plot 558 and 2214 have issues – the deceased be buried in a neutral place – a public cemetery. That this is so far better than the mortuary.
24. It is argued the prayers sought in the application should not be granted in favour of the applicant.
25. The issue for determinations is whether or not this court should review its judgment of 15/4/2024.
26. The first thing I must acknowledge is the unfortunate delay in the delivery of this ruling, it was meant to be delivered on 29/7/2024 as a result of an inadvertent administrative failure on our part.
27. It is noted that the applicant would consider a cemetery a shameful place of burial for the deceased, yet his wife is ready the 1st respondent is ready to bury him there. It is unfortunate how broken this family is. The court orders cannot cure this. This family needs to deal with its issues.
28. Order 45 rule 1 of the CPR provides; Application for review of decree or order [Order 45, rule 1.]
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay
29. Section 80 of the CPA states; Review Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
30. The applicant’s position is that the new evidence is that the ancestral land is not existing. It belongs to the brother of the deceased.
31. I begin with the mediation. The Respondent refused to attend the mediation talks. It is contradictory for her to depone in her affidavit that she is a peaceful person who would not deny anyone access to her home if allowed to bury her husband. Yet, her actions speak loudly. She would not sit at the same table with the same people to discuss the issue at hand. Why would the court trust that she would do what she says away from the courts lime light when she could not do the least expected of her through the court’s direction? It is my view that conduct is evidence of what would happen if she was allowed to bury the deceased.
32. It is unfortunate that she threw away this opportunity granted through the court process. Parties did not have to agree but at least they would have talked under the guidance of the mediator.
33. I must call out this kind of conduct. It is not proper for a party to get directions from the court, not challenge the directions and refuse deliberately to abide by those directions. In the current Constitutional dispensation and the regime of the Civil Procedure Act on the requirement that parties will assist the court to expedite the matter, as found under s. 1A. (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. It is an abuse of the court process for a party to be directed by court to do a thing, refuse to do so and provide no explanation for the same. Advocates must of necessity abide by the letter and spirit of the Constitution – that Alternative Dispute Resolution mechanisms are part and parcel of our justice system. So when counsel for 1st respondent submits that a letter was written and proposals made with respect to the place for burial in it and there was no response they cannot be heard to say so – those proposals ought to have been placed on the mediation table. The respondents’ Counsel had an obligation to either challenge the directions or weigh it upon her client to attend the mediation and place her case before the other parties.
34. That said – the applicant and other parties attended the mediation proceedings several times. It is apparent that nothing was discussed on the three occurrences that the parties attended.
35. Again, an opportunity was missed. If indeed the issue was that the burial site the court had ordered was unavailable, this side of the family was at liberty to talk about it as well, because the issue was the applicant was seeking an alternative place of burial. Mediation is not about us vs them, or them vs us, etc but about parties tackling the issue at hand and seeking a lasting solution.
36. Looking at the application for review and the principles laid out by the law and precedent: – A reading of the proceedings reveals that that land is where the deceased and his siblings lived with their mother. That is why during the hearing it was being referred to as the mother’s home
37. I have perused the judgment before the Environment and Land Court – the evidence is that the deceased and his siblings and their mother all lived on that parcel of land. The plaintiffs sought a very specific order, a declaration that the land – but their suit was dismissed leaving the status quo that that was the home of the mother of the deceased and her children. The deceased’s brother has not raised any objection either here or below and even in this application for review there I did not find supporting evidence for the claims made by the applicant. Edward Kavivya has not sworn an affidavit saying that this place is not available for the burial of his brother.
38. Going by Order 45 Rule (1) of the Civil Procedure Rule and section 80 of Civil procedure Act – and the laid down principles –
1) There is no new evidence: What the applicant alleges is what was before the court
2) There is no error on the face of the judgment
3) No sufficient reason laid to warrant the prayers sought.
39. In the circumstances- the application for review is denied, and dismissed. For whatever it is worth, the parties are at liberty to pursue a family settlement.
40. Each Party will each bear their costs.
41. And for the 1st respondent, refusal to attend the mediation forum, she will bear the cost of the mortuary fees from the date the mediation was to take place, the 24/4/2024 to the 24/5/2024.
42. Orders accordingly
Dated, signed and delivered via CTS this 6th of September, 2024
Mumbua T Matheka
Judge