BERNARD NGUI KATAMA VS MARIA KIMONYI ITUTE AND MICHEAL MASAKU MUTISYA BERNARD NGUI KATAMA VS MARIA KIMONYI ITUTE AND MICHEAL MASAKU MUTISYA

On 17^th October, 2022 Joseph Katama Mutisya died while undergoing treatment at Makindu Subcounty hospital.
On 24^th October, 2024, Benard Ngui Katama, his son filed Makindu MCCC 167/2022 seeking the following orders:
An order compelling the Defendants that the body remains of (Joseph Katama Mutisya) be buried on Plot No.558 Kaunguni Settlement Scheme with involvement of the Plaintiff and other family members/relatives in all funeral arrangements.
An order that DNA samples be extracted from the deceased’s (Joseph Katama Mutisya) body remains for preservation to safeguard rightful beneficiaries to the estate.
An order compelling KENYA COMMERCIAL BANK to withhold all finances in A/C No. 1152249622 and all those retirement benefits with Kenya Port Authority belonging to the Deceased likely to be channelled in the account herein.
Costs and interest of this suit.
Any other relief that this honourable court may deem fit and just to grant.
The Plaintiff’s case was that the 1^st Defendant Maria Kimonyi Itute, on the claim that she was a wife of the deceased together with 2^nd Defendant intended to bury/inter his body without his (plaintiff’s) own involvement, and that of his siblings/other relatives; that the land upon which they intended to bury the deceased belonged to Makueni County Government yet the deceased had his own home - the matrimonial home of his 1^st wife.
The Plaintiff’s position is that the deceased ought to be buried under Kamba customary law in accordance with his cultural burial practices and rites; that the Defendants are interested in the estate of the deceased, and want to deprive the rightful heirs of the deceased of the same.
The Defendants filed a joint statement of defence and counterclaim on 4^th November, 2022.
The 1^st Defendant averred that the plot where she intended to inter the deceased No. 2214 Kaunguni was registered in her name having bought it in 2010. Both defendants deny all the other allegations.
The 1^st Defendant avers that she is the only legal wife of the deceased - after marrying him after he divorced his 1^st wife. That he and she conducted a civil marriage in 2020.
The Defendants counter claim is that the deceased went through a the formal divorce with the mother of the Plaintiff in Makindu Magistrate’s Court Divorce Cause No. 6/11; that the 1^st Defendant - as the widow of the deceased she has the right to bury her husband at a place of her choice; - but in this case the made the wish in his will to be buried at Plot 2214 Kaunguni Settlement Scheme. The Defendants seek the following prayers;
An order allowing and/or releasing the body of the deceased to the 1^st Defendant for burial at Plot No. 2214 Kaunguni Settlement Scheme within Kivuthini.
An order barring the Plaintiff whether by himself or his servants and/or agents from interfering with the burial arrangements and burial ceremony to be conducted by the Defendant.
An order directing the Plaintiff to pay the mortuary preservation fees for the period of this suit.
Costs of the suit herein.
Prior to the filing of defence and counterclaim the Plaintiff amended his plaint on 8^th November, 2023 to add the prayer:

“An order do issue that the body remains of Joseph Katama Mutisya, deceased be released to the Plaintiff for inter/burial on plot No. 558 Kaunguni Settlement Scheme”.

The learned trial court heard the matter through viva voce evidence - and delivered his judgment on 28^th April, 2023 where he found that 1^st Defendant had proved her case and gave the following orders:
The body of the deceased Joseph Katama Mutisya be released to the first Defendant forthwith for burial at Plot No. 2214 Kaunguni Settlement Scheme or at any other place of her choice.
An order is issued barring the Plaintiff whether by himself or his servants and/or agents from interfering with the burial arrangements and burial ceremony to be conducted by the Defendants.
The Plaintiff is at liberty to attend and participate in the burial ceremony of the deceased.
The Plaintiff shall pay all the mortuary charges for the duration of the suit until the date of delivery of this judgment.
The OCS Makindu police station to provide security and ensure compliance of the orders above.
Aggrieved the Plaintiff filed this appeal on the following grounds:
The honourable court erred in finding the Appellant does not have rights to bury the deceased despite him being the first son whereas the 2^nd Respondent is a cohabit.
The court erred in finding the 1^st Respondent is a wife regardless of the procedure for registration of marriage and that she could bury the deceased on Plot No. 2214 Kaunguni Settlement Scheme.
The trial court erred in permitting the 1^st Respondent to bury the deceased on Plot No. 2214 instead of Plot No. 558 Kaunguni Settlement Scheme which former has several ownership cases pending in court whereas the latter is registered in the deceased’s name.
The trial court erred in facts and law when it failed to analyse evidence on place of burial between the parties herein thus arrived at a wrong decision.
THAT the honourable trial court erred when it failed to conclusively give determination on the body samples that were extracted during the consented post-mortem that rendered inconclusive judgment.
The trial court erred in dismissing the Appellant’s case that the same had not been proved on the balance of probability.
The trial court erred in restraining the Appellant from attention or participating in the funeral arrangements nor burial ceremony when there was no evidence of likelihood to cause breach of peace with no determination on the participation of other relatives and the first family.
The trial court erred in law and facts that the Respondents had proved the counterclaim when same required corroborative evidence that was never tendered.

And sought orders:

The Judgment and the decree of the trial court be set aside/or the Respondents counterclaim be dismissed.
That an order does issue compelling the 1^st Respondent to inter/bury the body remains of Joseph Katama Mutisya (deceased) on Plot No. 558 Kaunguni Settlement Scheme with participation of the Appellant, the 1^st family and all other relatives.
That the appeal be allowed and costs of the trial court and appeal be borne by the Respondents.
On 4/5/2023 the matter was referred to mediation.
A mediation settlement was filed on 7/6/2023 to the effect that all the parties had agreed that they would all participate in the burial arrangements of the deceased. That meant that the only key issue left for determination by this court was - where would the deceased be buried plot 558 or 2214?
Parties proceeded by way of written submissions
For the Appellant only 2 issues were argued;

Whether the 1^st Defendant was wife of the deceased.

It was submitted that the evidence of the Registrar of Marriages was not enough to prove that the 1^st respondent was married to the deceased. That the 1^st Defendant had testified to a customary marriage, and to a civil marriage, yet the process for this were different. That the Registrar of Marriages who testified in court was not present at Machakos when the marriage was registered and could only speak to the documents.

Where would be the place of burial for the remains of the deceased?

It was submitted that the court allowed the 1^st Defendant to bury the deceased on Plot No. 2214 at Kaunguni Settlement Scheme yet she produced no evidence to establish and the same was registered in her name. That the 1^st Respondent had not called the only witness who would have established that position. It was argued that the deceased had distributed his estate - including Plot No. 558 - leaving a portion for himself and it was on this portion of land that he ought to be buried. The applicant relies on Musa Magodu Keya (Deceased) [2021] e KLR where the court stated:

“It is trite that the burial of a deceased must be at a place where not only all the parties are free to attend but also where the ownership of the land is not in dispute”.

It was argued that on the strength of this case the site at Plot No. 558 is the one that would be suitable for all parties.

For the Respondents it is submitted that Appellant has brought this suit in his personal capacity and his siblings were not involved in any way. That the grounds of appeal raised only three issues;
Whether the 1^st Respondent was wife of deceased. It was submitted that the deceased was married to Agnes Makau - mother of the Plaintiff but the two were divorced in Makindu Divorce Cause No. 6/2011 where the court issued judgment and decree absolute; that the deceased married 1^st Defendant through customary marriage and later through a civil ceremony.
Who should bury the deceased - it is submitted that the deceased made a choice of where he would be buried and in any event, it is the person closest to the deceased who gets the right to bury them. The Respondent relied on:

Ruth Wanjiru Njoroge v Jemimah Njeri Njoroge & Another [2004] eKLR where it was held;

“The person who proves the closest chain of relationship touching on the deceased has the colour of right of burial ahead of any other claimant.” We submit that as between the appellant and the 1^st Respondent, the 1^st Respondent was closest to the deceased. She was better placed to have known the wishes of the deceased in his last days. Still in the absence of the deceased’s wishes she is entitled to make the decision on where her husband’s remains should be laid.

Where the deceased’s remains should be laid - it is submitted that the trial court decided on Plot No. 2214 Kaunguni Settlement Scheme. It is argued that the deceased expressed the desire to be buried at his home with 1^st Defendant or his ancestral home where all the parties would have access. It is submitted that according to the case relied on by the Appellant - Musa Magodu Keya - the criteria set out there rules out Plot No. 558 because it is where te mother os the appellant resides and the possibility that the 1^st Defendant would be denied the right to bury her husband and access to her husband’s burial site is not far fetched.
With regard to the ownership of Plot No. 2214 Kaunguni Settlement Scheme - it is submitted that no one has come to lay a claim over it in that counter-claim of the 1^st Defendant’s interest. It is argued that there was no requirement for the 1^st Defendant to prove that the land belonged to her - all she needed to prove is that she had a home there and that she did.
Having considered the evidence, the submissions and the entire record it appears to me that though the mediation settlement recognised that all the parties in this matter had the right to participate in the burial of the deceased, two issues stack out for determination:

Whether the 1^st Defendant is wife of deceased?
Where the deceased should be buried.

On the 1^st issue - we cannot speak about it without mentioning the mother of the Plaintiff/Appellant. The record shows that the witnesses for the plaintiff including the plaintiff told the court that they did not know the 1^st defendant. They also told the court that the 1^st defendant was not a wife of the deceased, but had only recently began to cohabit with the deceased.
The mother of the plaintiff was married to the deceased . According to the judgment in PMC (Divorce Cause) No. 6/2011 Makindu they got married in 1971 through customary law - then on 8^th August, 1999 they had a church wedding. In 2011 it was the deceased who filed for divorce against the mother of the Plaintiff. In his testimony he told that court that he had separated from Agnes in 2010 and moved out of the matrimonial home and married another wife. These were the words of the deceased in 2011, made under oath.
In her own testimony Agnes, the mother to the plaintiff told the court that her husband ( the deceased herein) had left her in 1992 for another woman by the name Priscilla. The court found as a fact that the parties - Agnes and the deceased had been living separately from 2010 and proceeded to dissolve the marriage in 2011. A decree absolute was made on 13/12/2019.
Clearly: The mother of the Plaintiff is not a wife of the deceased. The deceased, even at the time he divorced his wife was already cohabiting with the 1^st Defendant, something that the wife was aware of. The deceased had left his matrimonial home and had not lived there by the time of his demise. It is now clear why he had reason to express his wishes not to be buried at his matrimonial home which he had set up with his ex-wife.
The 1^st Defendant testified that there was a customary marriage before the civil marriage with the deceased. It is evident that this was no different from how the deceased married Agnes hence the appellant cannot be heard to discredit the process. That was the same process the deceased had married his ex-wife.
In addition, the 1^st Defendant produced a marriage certificate through the Registrar of Marriages Machakos. While the plaintiff claimed that he had conducted a search to verify the said marriage certificate and had not found sufficient evidence to support the alleged civil marriage, there was no claim that the marriage certificate was a forgery or a fraud - and being a public document, the Registrar of Marriages, holding the office at the material times was the proper witness to testify and produce it. The record does not show that that the Appellant required the attendance of the Registrar who had registered the marriage. But more importantly there was no evidence to contradict the genuiness of the marriage certificate. It is my view that the 1^st Defendant established and she is indeed the wife of the deceased.
The next question is where the deceased should be buried. Two spaces have been proposed: Plot 558 at Kaunguni Settlement Scheme belonging to the deceased and plot no. 2214 said to belong to the 1^st defendant.
Evidence was placed before court, and which is not disputed in the current proceedings, that the deceased made a will distributing his properties comprising of plots 519 and 558 at Kaunguni Settlement Scheme to the children of his ex wife together with his ex wife. The 1^st defendant and her children are given plot no 1730. One can see that in his thinking he separated the 2 houses; - one plot 519, 558 and the 1^st Defendant 1730 and a Plot at Mbui Nzau Market.
It is the appellant’s position that the deceased left fot himself a portion on plot 558 in which it is his desire that his father be interred there.
However, it is evident that the deceased was alive to the fact that these houses would not live on the same parcel of land because they had never done so. This is because from the facts he left his matrimonial home and went to live with the 1^st defendant.
In the will he states: “I direct that my body shall be buried at the home of Maria Kimonyi in Kivuthini within Kaunguni Settlement Scheme.”
It is noteworthy that there is no mention of a plot no – and one cannot tell whether this place is the same as plot no. 1730 Kaunguni Settlement scheme or 2014. While there is proof that plots 558 belong to the deceased, there is no evidence that plot No. 2214 belongs to the 1^st Defendant. I do not agree with the submissions by counsel that the 1^st Defendant did not have to prove ownership of the property - she had to. How would the court direct that the remains of a deceased person be interred on a parcel of land whose ownership is not known?
To submit that it is enough that there is no known dispute over the said parcel of land/that no one has since have to lay claim over the land is to miss the point.
The deceased has been lying in a mortuary since 17/10/2022 and it would only be fair that when he is laid to rest, there would be no threat of his remains being disturbed again.
I have found illumination on the issues before me in SAN Vs GW [2020] eKLR the Court of Appeal upheld the decisions of the two lower courts allowing the 2^nd wife to bury the deceased. The court stated at the outset

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 that provides that: -

“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.”

In this case the parties have turned to customary law, to marriage law, to alleged customs, rites and traditions. Our Katiba speaks to our right to culture at Article 44

(1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.

(2) A person belonging to a cultural or linguistic community has the right, with other members of that community—

(a) to enjoy the person’s culture and use the person’s language; or

(b) to form, join and maintain cultural and linguistic associations and other organs of civil society.

(3) A person shall not compel another person to perform, observe or undergo any cultural practice or rite.

And to the duty of the court the uphold the same as is set out under Article 159(2) (c) were the court is bound to encourage the resolution of disputes through alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms
However, the same Katiba prohibits the imposition of culture on any person.
The plaintiff is persistent that according to Akamba culture the 1^st born son has the duty to bury the father. However, it is noteworthy the deceased even aware of that culture chose otherwise. He left his matrimonial home and went to live with the 1^st defendant and wrote down in a document that he did not wish to be buried in her home. However hard this may be, it would not be proper to impose a cultural practice he opted out of when he was alive on him when he is deceased. True, more often than not the cultural practices are intended for the benefit of those living however if a person disconnected themselves from those, then we leave it there and nay amends we try to make ought to respect their choices. The court in SAN Vs GW (above) stated;

Apart from these factors, courts have also been unanimous as far as we can tell from decided cases that, both laws, common and customary, have one thing in common, in so far as burial is concerned; that the wishes of the deceased, though not binding, must so far as is possible, be given effect, so long as those wishes are not contrary to custom or to the general law or policy. See Apeli vs. Buluku [1980] e KLR and Samuel Mungai Mucheru & 3 Others vs. Ann Nyathira [2014] e KLR.

The wishes or a will on how the deceased’s remains will be disposed of upon death are not, as a general rule binding because, in the first place, there is no property in a dead body and secondly, because a dead person cannot take part in the decision of his or her own burial. There must, however, be compelling reasons for not heeding the expressed wishes of the deceased. (emphasis mine)

The death of this deceased evoked split views from both the family and the clan for the simple reason that some of the parties were unable to accept the choice of the deceased, to divorce his wife and marry someone else. The plaintiff and his witnesses insisted that his mother was the first wife of the deceased despite uncontroverted evidence of a judicial divorce.
The place of burial chosen by the plaintiff is a subdivision of land that was done before the deceased’s will. It is overtaken by that event.
In my considered view both the places proposed by the plaintiff and the 1^st defendant would not suit the justice of this case. The 558 is the home of the ex-wife, the 2214 there is no evidence of ownership. So, where?
During the hearing it emerged that the deceased, aware of the situation he was in, had also mentioned an alternative, his mother’s home, his own ancestral home in Kathonzweni.
While proposing Plot no 558 as the neutral place Counsel for the Appellant argued that is the place that would be accessible to everyone. However, a glance at the document the plaintiff refers to as the distribution by the deceased, the portion is bang right next to the parcel of land demarcated to the deceased ex-wife. Definitely this would not be a neutral space
The Defendants/ Respondents are in agreement with the submission for a neutral space accessible to all parties. This is considering the fact that each of the parties has a vested interest in each of the spaces they each propose.
The ancestral home of the deceased offers a welcome alternative. It would provide a place where neither the Plaintiff nor the Defendant have control - it would respect the wishes of the deceased not to be buried at his ex-wife’s matrimonial home - and it would provide a mutual place where all the parties herein would participate in the burial and access the burial site thereafter without hindrance.
It is also my view that it would remove the misguided view that the person who buries the body caries the property of the deceased. Kenyans! Kenyans! We must learn to separate these issues. When a person is dead - our duty as family, friends, relatives, is to lay his body to rest, and for those who chose - to cremate them.
The issues of inheritance have no relationship with who carries the body - in fact what matters most is how one related to the deceased before they died. This thing of waiting for a person to die, and when they cannot speak for themselves - impose our views on how their bodies should be treated, must find a way in a regulatory framework.

As was observed by the Court in the SM case, it is only through legislation that matters such as the deceased’s wishes will be given a permanent place in law SAN Vs GW (above)

I find the words of the same court relevant to this case. It said

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…In this case, besides the fact that given the father and his family’s treatment of the deceased he is not deserving of the right to bury the deceased’s remains”.

Though the parties settled that they would all participate in the burial of the deceased, plaintiff herein in his testimony told the court that if the 1^st defendant established she had the was the deceased’s wife then she had the superior right to bury him. He could also not explain why his mother who is alive did not file this suit. Most probably because she knew that her right to do so was extinguished when the deceased divorced her. The evidence supports the position that the 1^st defendant lived with the deceased till the day she took him to hospital. She is the one who lived with him for over 10 years since the time he divorced Agnes. She is the one closest to him as his spouse - she has the right to bury him.
I cannot ignore the fact that the deceased recognized his ex-wife, recognized his children with his ex-wife - they too have a role in the burial of their father - after all he was their father - that would explain why the Plaintiff has come to court - wanting to give his father the send-off that will leave healing to the family. That is why when this matter first came on appeal, I referred it to mediation - I congratulate the family because they recognized that they all had a place in the life of the deceased - and had a role to play at his burial.
I have learnt something in these streets and from my elders that death is not an end in itself - as living people, we are connected to those who left this earth before us, and those who are to come - we respect the dead, yet they cannot hear us, because we have a connection - we do the right thing by them, because we believe that they are still here with us. We keep them alive by naming those who come after them, after them.
The Justice of this case would require this court not only to consider that here is a legal wife, or the culture of the 1^st born son, or the burial rites of the Akamba people but the restoration and maintenance of the relations of the family of the deceased - who even in death recognized all of the parties herein as his family.
For clarity in the final orders the appellant sought the following prayers
- 1. The Judgment and the decree of the trial court be and is hereby set aside/or the Respondents counterclaim be dismissed.
  2. That an order does issue compelling the 1^st Respondent to inter/bury the body remains of Joseph Katama Mutisya (deceased) on Plot No. 558 Kaunguni Settlement Scheme with participation of the Appellant, the 1^st family and all other relatives.
  3. That the appeal be allowed and costs of the trial court and appeal be borne by the Respondents
I find that in the circumstances of this case neither the plot 558 nor 2214 at Kaunguni Settlement Scheme is a suitable place for burial of the deceased
Maria Kamonyi Itute, as the legal wife of the deceased, together with your children, together with the deceased’s ex -wife, and her children led by the plaintiff applicant, take him to his own ancestral home, Kathonzweni to the place of his parents are - so that you may all be able to visit him there.
The appeal is there for partially successful.
Ultimately, the judgment of the subordinate court be and is hereby set aside and substituted with the order compelling the 1st Defendant Respondent to inter/bury the body remains of Joseph Katama Mutisya (deceased) at his parents’ home in Kathonzweni with participation of the Appellant, the 1st family and all other relatives as soon as possible.
The appellant will clear all the mortuary bills for holding the body in the mortuary.
Each party will bear its own costs

Dated signed this 12^th day of April, 2024.

Delivered on 15^th April 2024 due to systems down on 12/4/2024