(Being an appeal from the Judgment and Decree in Chief Magistrates Family Court Milimani MCFC/E041 of 2026 delivered on 10 th June, 2026 by Hon. A. Mwangi, SPM.)
1. The Deceased, Ashkin Ronald Evan ‘Alias Ron Ashkin’ died in Nairobi in March, 2026. He was an American citizen working in Kenya with DT Global, the 7 th Interested Party. A dispute concerning his burial arose between the Appellant and the 1 st Respondent, both of whom claimed to be his widows. The two could not agree on who should have his remains for burial and disposal. The Appellant wanted to repatriate the deceased’s body to Nigeria for burial while the 1 st Respondent and the 2 nd Respondent (the Deceased’s daughter) wanted to repatriate his remains to the United States for burial.
2. The 1 st and 2 nd Respondents brought a suit seeking a declaration that they were the only persons entitled to determine the burial and disposal of his remains. They also sought a declaration restraining the Appellant from removing or repatriating the body of the Deceased. The matter proceeded to a full trial, and the parties gave oral testimony before the Court.
3. In the same proceedings, the Appellant filed a Preliminary Objection in which she denied the Court’s jurisdiction to determine the suit. She argued that the Court lacked jurisdiction to hear and determine the suit, stating that Section 7 (3) of the Magistrate’s Court Act confers jurisdiction upon the Court over burial disputes only if the parties are governed by African customary law. She argued that African customary law cannot apply to this case because the Deceased was an American citizen, as were the 1 st and 2 nd Respondents, who were the Plaintiffs at the lower Court.
4. The Court delivered a judgment on 10 th June, 2026, in which it also determined the Preliminary Objection. It overruled the Preliminary Objection and held that it had jurisdiction under Section 7 (1) of the Magistrates’ Court Act or under Section 7 (3) of the same Act.
5. On the substantive aspects, the Court held in favour of the 1 st Respondent by finding that she is the valid spouse of the Deceased. It also found that the Appellant’s marriage with the Deceased was void under the Indiana Law. Consequently, the Court held that the Appellant lacked the locus standi on the question of who is to bury the Deceased, as she did not fall within the defined categories of the people entitled to bury the Deceased. Accordingly, the Court held that the 1 st and 2 nd Respondents are the only persons entitled to determine the burial and disposal of the deceased’s remains.
6. The Appellant was dissatisfied with the judgment and brought this appeal vide a Memorandum dated 11 th June, 2026. She listed the following Grounds of Appeal;
1) THAT the Learned Magistrate erred in law and fact by misconstruing and misapplying Section 7 (1) of the Magistrates’ Courts Act to arrogate the court jurisdiction over a burial dispute, thereby creating an expanded civil mandate not contemplated by statute.
2) THAT further, by assuming jurisdiction under Section 7 (1) on the basis of an implied monetary valuation of the subject matter, erred not only because, it is a well-established common law principle that a deceased body is not property and as a consequence cannot be assigned a monetary value but more materially, but more egregiously because the Learned Magistrate proceeded on the premise that a deceased human body could be assigned an ascertainable pecuniary value.
3) THAT the Learned Magistrate erred in law, in holding that the Court had jurisdiction under Section 7 (3) of the Magistrates’ Courts Act to adjudicate over the subject dispute despite the deceased, being a citizen of Untied States of America, not being subject to or affected by African customary law.
4) THAT the Learned Magistrate erred in law and contradicted herself by holding, on the one hand, that Section 7 (3) of the Magistrates’ Courts Act confers jurisdiction on subordinate courts only in respect of burial disputes governed by African customary law (see paragraph 4 & 5 on page 6 of the Judgment), while on the other hand relying on the holding in Mwaniki v Mwaniki (Environment and Land Appeal No. 98 of 2014) [2015] KEELC 847 (KLR) as a basis for jurisdiction under Section 7 (3), notwithstanding that the said decision expressly proceeds on the premise that the Magistrates' Courts Act only has jurisdiction over burial disputes where the dispute falls strictly within the customary-law claims — a holding that directly contradicts, rather than supports, the Learned Magistrate’s positive finding of jurisdiction in this case, where African customary law is inapplicable.
5) THAT the Learned Magistrate erred in law in her reliance on SAN v GW [2020] KECA 46 (KLR) as authority for the proposition that African customary law is merely one among several possible guides to resolving burial disputes and is not a jurisdictional precondition, when properly construed the Court of Appeal in that case affirmed that customary law remains the governing personal law in burial disputes in Kenya and applies by dint of Section 3 (2) of the Judicature Act only where one or more of the parties is subject to or affected by it — a precondition this case did not meet — such that the authority, properly read, undermined rather than supported the Learned Magistrate’s assumption of jurisdiction.
6) THAT the Learned Magistrate erred in law and acted in breach of the doctrine of judicial precedent by departing from, and effectively disregarding, the binding decisions of the High Court and Court of Appeal on the jurisdictional prerequisites for burial disputes before subordinate courts, in that Magistrate’s Court can only assume jurisdiction over a burial dispute where the parties are shown to be subject to or affected by African customary law, and that the Learned Magistrate, being bound by the doctrine of stare decisis, had no latitude to assume jurisdiction in the absence of such a showing.
7) THAT the Learned Magistrate having improperly assumed jurisdiction, erred in law and in fact by converting a burial dispute into a determination of the validity of the parties’ respective marriages and subsequently making a definitive, final and prejudicial finding that the Appellant’s marriage was void ab initio.
8) THAT the Learned Magistrate, further erred in law by purporting to determine the validity of the Appellant’s marriage to the deceased — contracted in Nigeria under native law and custom — and declaring it void under the 2006 Indiana Code, when the Magistrates’ Court had no jurisdiction to pronounce on the validity of a marriage in collateral proceedings; such a determination could only properly be made in substantive proceedings under the Marriage Act, 2014, or in succession proceedings under the Law of Succession Act, where the parties would have notice and the opportunity to adduce, test, and ventilate evidence on the applicable law, including Nigerian conflict of laws principles.
9) THAT the Learned Magistrate breached the rules of natural justice and procedural fairness by determining the ultimate validity of the parties’ respective foreign marriages within the context of summary burial proceedings, despite the Appellant’s timely objection that the issue was not distinctly pleaded as a triable issue for proper evidence and expert proof of foreign laws to be led or cross-examined.
10) THAT the Learned Magistrate erred in law and in fact in proceeding on the premise that the validity of the parties’ respective marriages was the dispositive question in the suit, when, even on the authority of SAN v GW [2020] KECA 46 (KLR) which the Learned Magistrate herself relied upon, marital status is used to determine the limb of a two-part inquiry —whether the claimant, irrespective of formal marital status, demonstrated closeness to and involvement with the deceased during his lifetime; and that by collapsing the inquiry into a single, all-or-nothing finding that the Appellant’s marriage was void ab initio, the Learned Magistrate foreclosed any consideration of the Appellant's 18 years of cohabitation, her care of the deceased through his terminal illness, and the deceased’s expressed burial wishes — matters that superior court authorities require to be weighed independently of, and which may even displace, a finding on formal marital status.
11) THAT the Learned Magistrate erred in law by failing to apply the correct test reiterated by the Court of Appeal in Ontweka & 3 Others vs. Ondieki (Civil Appeal E692 of 2023) [2024] KECA 11 (KLR) being, that the right to bury is determined by who was demonstrably closest to the deceased during his lifetime, and that a person’s conduct towards the deceased, including absence and non-involvement in his life and illness, can extinguish their right to bury — and instead substituted an artificial test based purely on the formal validity of a marriage contracted 42 years prior, notwithstanding evidence that the 1 st Plaintiff had been absent from the deceased’s life for a substantial period while the Defendant cared for him through his terminal illness.
12) THAT the Learned Magistrate erred in fact by completely ignoring the material reality in these proceedings of “legal and emotional proximity,” by failing to consider that the Plaintiffs but 1st Plaintiff more so, had been entirely absent from the Deceased’s life for decades whereas the Appellant was the proximate caregiver who lived with, supported and stood by the Deceased throughout his terminal battle with Stage 4 prostate cancer.
13) THAT the Learned Magistrate erred in law and in fact by wholesale rejection of the entirety of the Defendant’s evidence — including her evidence of cohabitation for 18 years, her care of the deceased throughout his terminal illness, the existence and welfare of the two children of the union, and the deceased’s expressed wishes as to his place of burial — on the sole basis of a finding that her marriage was void, when even a void marriage does not extinguish: (a) the factual reality of an 18-year relationship and family life that is directly relevant to the question of who was "closest" to the deceased under SAN v GW (supra); (b) the rights of the children of that union to participate meaningfully in the burial; or (c) the relevance of the deceased’s wishes as to burial, which the Court of Appeal has held must be given effect “so far as is possible” regardless of the marital status of the person reporting them.
14) THAT the Learned Magistrate erred in law and fact by holding that the Appellant lacked locus standi to participate in or direct the burial arrangements of the Deceased, thereby disregarding the undisputed evidence that the Appellant had cohabited with the Deceased as husband and wife for over 18 years and sired two minor children with him.
15) THAT the Learned Magistrate erred in law and fact by failing to give any legal weight, consideration or effect to the express and lived wishes of the Deceased to be buried in Nigeria, wishes corroborated by his extensive official documentation, his brother and his brother’s fiancée, contrary to the established principles that the wishes of the Deceased person, though not strictly binding, are a paramount and persuasive factor in determining the final place of rest.
16) THAT the Learned Magistrate misdirected herself in equity by failing to consider that the Plaintiffs uprooting the Deceased’s remains from his chosen place of rest (Nigeria) where his dependent minor children and family unit reside, inflicts severe psychological and emotional distress on the minor children, which violates the overriding principle of best interests of the child under Article 53(2) of the Constitution of Kenya.
17) THAT the Learned Magistrate erred in law and contravened Article 53 of the Constitution of Kenya, 2010, by failing to treat the best interests of the deceased’s two minor children with the Appellant— aged 17 and 12 years, and his biological children— as a primary consideration, and by merely permitting them to “participate in the burial rites if they so wish,” when their participation in the burial arrangements ought to have been ordered as mandatory, given their constitutional entitlement as the deceased’s biological children.
18) THAT the Learned Magistrate erred in principle and exercised her discretion improperly be condemning the Appellant to pay the extra mortuary, preservation and storage costs incurred by the 7th Interested Party despite the fact that the preservation of the body was a direct consequence of the status quo and preservatory orders actively sought and maintained by the Plaintiffs.
7. She asked the Court to allow the appeal and set aside the Judgment and Decree of the trial Court delivered on 10 th June, 2026 in MCFC/E041/2026 . She also asked the Court to issue a declaration that she, alongside her minor children, is entitled to determine the burial place and disposal of the remains of the Deceased in accordance with his expressed wishes.
8. The appeal was canvassed by way of written submissions.
Appellant’s written Submissions
9. The Appellant submitted that the judgment of the lower Court should be set aside, arguing that the Court did not have jurisdiction to hear and determine the dispute. She submitted that a magistrates’ Court has jurisdiction over a burial dispute only where the deceased was subject to African customary law. In her view, a magistrates’ Court lacks jurisdiction over a burial dispute involving a foreign national not subject to African customary law. She argued that the Court could not derive its jurisdiction from Section 7 (3) of the Magistrates’ Court Act or Section 3 (2) of the Judicature Act because the two provisions apply where the deceased is an African and subject to African customary law. She submitted that the Deceased was an American citizen and thus could not be subject to the customary law of a Kenyan community.
10. In addition, the Appellant faulted the lower Court for making a determination on the validity of her 2008 Nigerian customary marriage, arguing that that issue was not pleaded as a distinct triable issue for proper evidence to be led, ventilated, and cross-examined. She argued that the foundational principle of Kenyan civil procedure is that parties are bound by their pleadings and a Court’s mandate is confined to resolving the specific controversies presented by the litigants. She submitted that she was condemned on a point she was never heard on and denied a fair hearing guaranteed by Article 50 (1) of the Constitution.
11. On the question of who should be given the remains for burial and disposal, the Appellant submitted that she is the right person. She argued that, according to the Court of Appeal in SAN vs GW, the ultimate right to bury is heavily determined by who was demonstrably closest to the Deceased in life- the reality of his ‘life narrative.’ She argued that she was the ‘closest’ to the Deceased based on the 18-year relationship and family life with the Deceased. She argued that the Deceased named her as his next of kin in all his official documents. She also stated that she provided daily care for the Deceased until his death for eleven years, while the 1 st Respondent was not aware of his illness.
Respondent’s written Submissions
12. The Respondents submitted that the lower Court’s judgment was warranted and should not be disturbed. On the issue of jurisdiction, they submitted that the Magistrates’ Court had jurisdiction to hear and determine the dispute, arguing that Section 7 (1) of the Magistrates’ Courts Act confers jurisdiction over civil proceedings of a general nature. They argued that a burial dispute is self-evidently a proceeding of a civil nature.
13. In addition, they submitted that the lower Court did not breach rules of natural justice or precedent in determining marital status, arguing that the validity of the marriages was squarely in issue on the pleadings. They argued that the issue of spousal status was directly joined on the pleadings because each party asserted it and denied the other’s, and each led evidence upon it.
14. Lastly, on the question of who should have the right to bury the Deceased, they submitted that the lower Court applied the correct legal principle, and its finding on this issue should not be disturbed. They argued that according to the Court of Appeal in SAN v GW, those with the right to bury the deceased are the spouse, children, parents, and siblings, in that order. They submitted that the claimant must additionally be shown to have been close to the deceased in his lifetime. They argued that the hierarchy is the primary ordering and that the closeness enquiry operates to distinguish qualifying claimants within it. They submitted that the hierarchy does not admit into the contest a person who holds no recognized legal relationship with the Deceased at all.
Issues for Determination
15. Having carefully considered the Grounds of Appeal and the parties’ respective submissions, I find that there is one issue for determination;
a) Whether the lower Court had jurisdiction to hear and determine the matter;
b) Whether the issue of validity of marriages was properly before the Court;
c) Who between the Appellant and the 1 st and 2 nd Respondents has a higher right to bury the Deceased.
The Role of the Appellate Court
16. The role of this Court as the first appellate Court is well-settled. It is trite law that the duty of the first appellate Court is to re-evaluate the evidence in the subordinate Court, both on points of law and facts, and come up with its findings and conclusions. As the court is re-evaluating the evidence, it is required to bear in mind that it had neither seen nor heard the witnesses.
17. This principle was set out in Okeno vs. Republic (1972) EA 32, where the East Africa Court of Appeal stated as follows;
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
18. Based on this authority, this Court is required to undertake a wholesome review of the Respondents’ suit at the lower Court and come up with its conclusion.
Whether the lower Court had jurisdiction to hear and determine the matter
19. The Appellant submitted that the lower Court did not have jurisdiction to hear and determine the matter. She made extensive submissions on this issue and reproduced numerous authorities to buttress her position.
20. However, I do not think that this issue is available for this Court’s determination. I have perused the record and I established that the matter was placed before the Magistrate’s Court pursuant to the direction of the High Court (Namisi, J.) in HCFMISC No. E111 of 2026, made on 25 th March 2026, that the matter be handled by the Magistrate’s Court. In my view, the Appellant should have appealed or sought review of the High Court’s directions ordering the transfer of the case to the Magistrate’s Court. She did not file any appeal or any review of the said directions.
21. Having this unique history on how the matter ended up at the lower Court, I find that the lower Court did not have the jurisdiction to entertain this issue because doing so would be tantamount to reviewing the directions of the superior Court, which is contrary to the hierarchy of courts established by Articles 162 and 165 of the Constitution.
Whether the issue of the validity of marriages was properly before the Court
22. The Appellant also submitted that the lower Court should not have determined the question of validity of the two marriages, arguing that the issue was not properly before the Court. She argued that the validity of the marriages was not pleaded as a distinct triable issue and that no proper evidence was led, ventilated or cross-examined to test the legitimacy of either woman’s status.
23. I have re-examined the record to determine whether the question of the validity of the marriages arose during the trial, and whether the parties adduced sufficient evidence to help the Court determine the same.
24. From the record, the issue of the validity of the marriages arose from the word go. The 1 st and 2 nd Respondents in their supporting affidavits sworn on 25 th March, 2026 and the Plaint dated the same day, accused the Appellant of falsely representing herself as the wife of the Deceased. In these 2 pleadings, the two Respondents claimed that the 1 st Respondent was the lawful wife of the Deceased. The Appellant filed a statement of Defence dated 14 th April 2026, in which she claimed to be lawfully married to the Deceased. She also stated the date of their marriage and the number of years they had lived together.
25. I have seen the parties’ oral testimonies. PW1, PW4 and PW5 gave oral testimony to support the Respondents’ claim that the 1 st Respondent was lawfully married to the Deceased. The 1 st Respondent produced a marriage certificate to prove the marriage as well as other documentary evidence to show that she was his wife. The Appellant cross-examined all these witnesses at length. In addition, DW1 told the Court that she was married to the Deceased and produced a marriage certificate to show the same. She was cross-examined on this issue.
26. Based on this analysis, I am persuaded that the issue of the validity of the two marriages was properly before the Court; it was pleaded from the onset of the case, both parties tendered evidence on the issue, the evidence was tested through cross-examination, and the parties submitted on the same. Thus, I find that the lower Court cannot be faulted for determining this issue.
27. The 1 st Respondent testified that they contracted a marriage on 25 th November, 1984, in Indiana, USA. She produced a Marriage Certificate (particulars withheld) as evidence and/or proof of the existence of the said marriage. The Respondents submitted that the marriage between the 1 st Respondent and the Deceased was a statutory civil marriage. They argued that it was a valid civil marriage under Section 40 of the Marriage Act, 2014.
28. Effectively, this is a foreign civil marriage that calls upon the application of Section 40 of the Kenyan Marriage Act 2014 , which provides a follows;
40. Recognition of foreign marriages as civil marriages in Kenya
A civil marriage contracted in a foreign country shall be recognized as a valid marriage if—
(a) it is contracted in accordance with the law of that country;
(b) it is consistent with the provisions of this Part; and
(c) the parties have the capacity to marry under this Act.
29. Courts have interpreted the above section on several occasions, in which they have given guidance on how a Kenyan Court should assess compliance with the above provision, Section 40 of the Marriage Act.
30. In re Estate of Nyoro Julia Nguhi Wanjiru (Deceased) [2019] KEHC 7456 (KLR) , the Court faced a similar question and found that the foreign civil marriage must conform to the provisions of Part IV of the Marriage Act, Section 35, which requires the marriage certificate to be signed by both parties and witnesses to the said marriage. The Court held as follows;
“One of the requirements for recognition of civil marriages is that they conform to the provisions of Part IV of the Marriage Act. Section 35 which falls under Part IV requires the Registrar of Marriage to cause the marriage certificate to be signed by the parties and by the witnesses to the marriage. The parties are then issued with two copies of the marriage certificate while the Registrar retains one copy thereof. The 1 st Objector did not however produce any such copy duly signed by both himself and the deceased nor did he state his reasons for not producing the documents. Without any such document, it cannot be ascertained that the marriage certificate produced was authentic . … A marriage is a contract and it is therefore required that the parties to the marriage append their signatures thereon to bind them to the contract.”
31. I have seen the said copy of the marriage certificate. It is curious that the parties, i.e the 1 st Respondent and the Deceased did not sign the marriage certificate. In fact, the marriage certificate is incomplete as a section of it was left unsigned. There is a space on the marriage certificate indicating it was to be signed, but it is blank. Without their signatures, I find that the said marriage is not consistent with Section 35 of the Marriage Act , which requires that the Marriage certificate must be signed by both parties. It thus cannot be recognized as a valid civil ceremony in Kenya because it does not meet the requirements in Section 40 of the Marriage Act, 2014.
32. Consequently, I find that the purported civil marriage cannot be recognized in Kenya for the above stated reasons. Thus, in my view, the 1 st Respondent did not prove her marriage to the Deceased.
33. The Appellant also claimed that she was married to the Deceased. She produced a document titled declaration of marriage, which indicates that it was issued by the Nigerian Court. The declarant is the High Court of Abuja. The Appellant admitted that she did not sign anywhere on the document. She also admitted that the Deceased did not sign anywhere on the document. The declaree is her sister, who allegedly witnessed the marriage. She told the Court that the officials asked for one signature and that they (the Appellant and the Deceased) were not asked to sign. This is quite curious.
34. Nonetheless, the Appellant maintained that the declaration was her marriage certificate and proof of her marriage. Assuming that the declaration of the marriage is her marriage certificate, as she has wanted this Court to believe, the next question for interrogation is whether the said marriage certificate is consistent with the provisions of Part IV of the Marriage Act, 2014 on the issuance of a marriage certificate. And particularly on the requirement that the marriage certificate must be signed by both parties.
35. I have already established that the Appellant and the Deceased did not sign the said marriage certificate (the declaration of marriage). For the single reason that they did not sign the marriage certificate, I find that the marriage certificate does not conform to the provisions of Part IV of the Marriage Act, 2014. Consequently, I find that the purported marriage cannot be recognized in Kenya for the above stated reasons. Thus, in my view, the Appellant too did not prove her marriage to the Deceased.
Who between the Appellant and the 1 st and 2 nd Respondents has a higher right to bury the Deceased
36. The Court of Appeal has in several instances given useful guidance on who has the right to bury the deceased. In SAN v GW [2020] KECA 46 (KLR) , the Court outlined, in some sort of hierarchy, the persons with right to bury the deceased. It held as follows;
“The third aspect of this dispute is 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.
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. ”
37. The Court of Appeal in Samuel Onindo Wambi vs. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR elaborated further on the issue of “closeness to the Deceased” and 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.”
38. The above authority gives spouses the first priority to bury the deceased. However, in the instant case, that avenue is not available because I have already found that the 1 st Respondent and the Appellant have failed to prove that their alleged marriages are recognizable in Kenya.
39. The rule in SAN v GW gives the children of the deceased person the second priority to bury the deceased. In this case, the 2 nd Respondent is a child of the Deceased and asked the Court to give her the body for burial. I also note that the Appellant had two children with the Deceased. Although the two minors were not parties to the suit, the Appellant submitted that it was in the best interest of the children to have the Deceased buried in thei
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1. The Deceased, Ashkin Ronald Evan ‘Alias Ron Ashkin’ died in Nairobi in March, 2026. He was an American citizen working in Kenya with DT Global, the 7 th Interested Party. A dispute concerning his burial arose between the Appellant and the 1 st Respondent, both of whom claimed to be his widows. The two could not agree on who should have his remains for burial and disposal. The Appellant wanted to repatriate the deceased’s body to Nigeria for burial while the 1 st Respondent and the 2 nd Respondent (the Deceased’s daughter) wanted to repatriate his remains to the United States for burial.
2. The 1 st and 2 nd Respondents brought a suit seeking a declaration that they were the only persons entitled to determine the burial and disposal of his remains. They also sought a declaration restraining the Appellant from removing or repatriating the body of the Deceased. The matter proceeded to a full trial, and the parties gave oral testimony before the Court.
3. In the same proceedings, the Appellant filed a Preliminary Objection in which she denied the Court’s jurisdiction to determine the suit. She argued that the Court lacked jurisdiction to hear and determine the suit, stating that Section 7 (3) of the Magistrate’s Court Act confers jurisdiction upon the Court over burial disputes only if the parties are governed by African customary law. She argued that African customary law cannot apply to this case because the Deceased was an American citizen, as were the 1 st and 2 nd Respondents, who were the Plaintiffs at the lower Court.
4. The Court delivered a judgment on 10 th June, 2026, in which it also determined the Preliminary Objection. It overruled the Preliminary Objection and held that it had jurisdiction under Section 7 (1) of the Magistrates’ Court Act or under Section 7 (3) of the same Act.
5. On the substantive aspects, the Court held in favour of the 1 st Respondent by finding that she is the valid spouse of the Deceased. It also found that the Appellant’s marriage with the Deceased was void under the Indiana Law. Consequently, the Court held that the Appellant lacked the locus standi on the question of who is to bury the Deceased, as she did not fall within the defined categories of the people entitled to bury the Deceased. Accordingly, the Court held that the 1 st and 2 nd Respondents are the only persons entitled to determine the burial and disposal of the deceased’s remains.
6. The Appellant was dissatisfied with the judgment and brought this appeal vide a Memorandum dated 11 th June, 2026. She listed the following Grounds of Appeal;
1) THAT the Learned Magistrate erred in law and fact by misconstruing and misapplying Section 7 (1) of the Magistrates’ Courts Act to arrogate the court jurisdiction over a burial dispute, thereby creating an expanded civil mandate not contemplated by statute.
2) THAT further, by assuming jurisdiction under Section 7 (1) on the basis of an implied monetary valuation of the subject matter, erred not only because, it is a well-established common law principle that a deceased body is not property and as a consequence cannot be assigned a monetary value but more materially, but more egregiously because the Learned Magistrate proceeded on the premise that a deceased human body could be assigned an ascertainable pecuniary value.
3) THAT the Learned Magistrate erred in law, in holding that the Court had jurisdiction under Section 7 (3) of the Magistrates’ Courts Act to adjudicate over the subject dispute despite the deceased, being a citizen of Untied States of America, not being subject to or affected by African customary law.
4) THAT the Learned Magistrate erred in law and contradicted herself by holding, on the one hand, that Section 7 (3) of the Magistrates’ Courts Act confers jurisdiction on subordinate courts only in respect of burial disputes governed by African customary law (see paragraph 4 & 5 on page 6 of the Judgment), while on the other hand relying on the holding in Mwaniki v Mwaniki (Environment and Land Appeal No. 98 of 2014) [2015] KEELC 847 (KLR) as a basis for jurisdiction under Section 7 (3), notwithstanding that the said decision expressly proceeds on the premise that the Magistrates' Courts Act only has jurisdiction over burial disputes where the dispute falls strictly within the customary-law claims — a holding that directly contradicts, rather than supports, the Learned Magistrate’s positive finding of jurisdiction in this case, where African customary law is inapplicable.
5) THAT the Learned Magistrate erred in law in her reliance on SAN v GW [2020] KECA 46 (KLR) as authority for the proposition that African customary law is merely one among several possible guides to resolving burial disputes and is not a jurisdictional precondition, when properly construed the Court of Appeal in that case affirmed that customary law remains the governing personal law in burial disputes in Kenya and applies by dint of Section 3 (2) of the Judicature Act only where one or more of the parties is subject to or affected by it — a precondition this case did not meet — such that the authority, properly read, undermined rather than supported the Learned Magistrate’s assumption of jurisdiction.
6) THAT the Learned Magistrate erred in law and acted in breach of the doctrine of judicial precedent by departing from, and effectively disregarding, the binding decisions of the High Court and Court of Appeal on the jurisdictional prerequisites for burial disputes before subordinate courts, in that Magistrate’s Court can only assume jurisdiction over a burial dispute where the parties are shown to be subject to or affected by African customary law, and that the Learned Magistrate, being bound by the doctrine of stare decisis, had no latitude to assume jurisdiction in the absence of such a showing.
7) THAT the Learned Magistrate having improperly assumed jurisdiction, erred in law and in fact by converting a burial dispute into a determination of the validity of the parties’ respective marriages and subsequently making a definitive, final and prejudicial finding that the Appellant’s marriage was void ab initio.
8) THAT the Learned Magistrate, further erred in law by purporting to determine the validity of the Appellant’s marriage to the deceased — contracted in Nigeria under native law and custom — and declaring it void under the 2006 Indiana Code, when the Magistrates’ Court had no jurisdiction to pronounce on the validity of a marriage in collateral proceedings; such a determination could only properly be made in substantive proceedings under the Marriage Act, 2014, or in succession proceedings under the Law of Succession Act, where the parties would have notice and the opportunity to adduce, test, and ventilate evidence on the applicable law, including Nigerian conflict of laws principles.
9) THAT the Learned Magistrate breached the rules of natural justice and procedural fairness by determining the ultimate validity of the parties’ respective foreign marriages within the context of summary burial proceedings, despite the Appellant’s timely objection that the issue was not distinctly pleaded as a triable issue for proper evidence and expert proof of foreign laws to be led or cross-examined.
10) THAT the Learned Magistrate erred in law and in fact in proceeding on the premise that the validity of the parties’ respective marriages was the dispositive question in the suit, when, even on the authority of SAN v GW [2020] KECA 46 (KLR) which the Learned Magistrate herself relied upon, marital status is used to determine the limb of a two-part inquiry —whether the claimant, irrespective of formal marital status, demonstrated closeness to and involvement with the deceased during his lifetime; and that by collapsing the inquiry into a single, all-or-nothing finding that the Appellant’s marriage was void ab initio, the Learned Magistrate foreclosed any consideration of the Appellant's 18 years of cohabitation, her care of the deceased through his terminal illness, and the deceased’s expressed burial wishes — matters that superior court authorities require to be weighed independently of, and which may even displace, a finding on formal marital status.
11) THAT the Learned Magistrate erred in law by failing to apply the correct test reiterated by the Court of Appeal in Ontweka & 3 Others vs. Ondieki (Civil Appeal E692 of 2023) [2024] KECA 11 (KLR) being, that the right to bury is determined by who was demonstrably closest to the deceased during his lifetime, and that a person’s conduct towards the deceased, including absence and non-involvement in his life and illness, can extinguish their right to bury — and instead substituted an artificial test based purely on the formal validity of a marriage contracted 42 years prior, notwithstanding evidence that the 1 st Plaintiff had been absent from the deceased’s life for a substantial period while the Defendant cared for him through his terminal illness.
12) THAT the Learned Magistrate erred in fact by completely ignoring the material reality in these proceedings of “legal and emotional proximity,” by failing to consider that the Plaintiffs but 1st Plaintiff more so, had been entirely absent from the Deceased’s life for decades whereas the Appellant was the proximate caregiver who lived with, supported and stood by the Deceased throughout his terminal battle with Stage 4 prostate cancer.
13) THAT the Learned Magistrate erred in law and in fact by wholesale rejection of the entirety of the Defendant’s evidence — including her evidence of cohabitation for 18 years, her care of the deceased throughout his terminal illness, the existence and welfare of the two children of the union, and the deceased’s expressed wishes as to his place of burial — on the sole basis of a finding that her marriage was void, when even a void marriage does not extinguish: (a) the factual reality of an 18-year relationship and family life that is directly relevant to the question of who was "closest" to the deceased under SAN v GW (supra); (b) the rights of the children of that union to participate meaningfully in the burial; or (c) the relevance of the deceased’s wishes as to burial, which the Court of Appeal has held must be given effect “so far as is possible” regardless of the marital status of the person reporting them.
14) THAT the Learned Magistrate erred in law and fact by holding that the Appellant lacked locus standi to participate in or direct the burial arrangements of the Deceased, thereby disregarding the undisputed evidence that the Appellant had cohabited with the Deceased as husband and wife for over 18 years and sired two minor children with him.
15) THAT the Learned Magistrate erred in law and fact by failing to give any legal weight, consideration or effect to the express and lived wishes of the Deceased to be buried in Nigeria, wishes corroborated by his extensive official documentation, his brother and his brother’s fiancée, contrary to the established principles that the wishes of the Deceased person, though not strictly binding, are a paramount and persuasive factor in determining the final place of rest.
16) THAT the Learned Magistrate misdirected herself in equity by failing to consider that the Plaintiffs uprooting the Deceased’s remains from his chosen place of rest (Nigeria) where his dependent minor children and family unit reside, inflicts severe psychological and emotional distress on the minor children, which violates the overriding principle of best interests of the child under Article 53(2) of the Constitution of Kenya.
17) THAT the Learned Magistrate erred in law and contravened Article 53 of the Constitution of Kenya, 2010, by failing to treat the best interests of the deceased’s two minor children with the Appellant— aged 17 and 12 years, and his biological children— as a primary consideration, and by merely permitting them to “participate in the burial rites if they so wish,” when their participation in the burial arrangements ought to have been ordered as mandatory, given their constitutional entitlement as the deceased’s biological children.
18) THAT the Learned Magistrate erred in principle and exercised her discretion improperly be condemning the Appellant to pay the extra mortuary, preservation and storage costs incurred by the 7th Interested Party despite the fact that the preservation of the body was a direct consequence of the status quo and preservatory orders actively sought and maintained by the Plaintiffs.
7. She asked the Court to allow the appeal and set aside the Judgment and Decree of the trial Court delivered on 10 th June, 2026 in MCFC/E041/2026 . She also asked the Court to issue a declaration that she, alongside her minor children, is entitled to determine the burial place and disposal of the remains of the Deceased in accordance with his expressed wishes.
8. The appeal was canvassed by way of written submissions.
Appellant’s written Submissions
9. The Appellant submitted that the judgment of the lower Court should be set aside, arguing that the Court did not have jurisdiction to hear and determine the dispute. She submitted that a magistrates’ Court has jurisdiction over a burial dispute only where the deceased was subject to African customary law. In her view, a magistrates’ Court lacks jurisdiction over a burial dispute involving a foreign national not subject to African customary law. She argued that the Court could not derive its jurisdiction from Section 7 (3) of the Magistrates’ Court Act or Section 3 (2) of the Judicature Act because the two provisions apply where the deceased is an African and subject to African customary law. She submitted that the Deceased was an American citizen and thus could not be subject to the customary law of a Kenyan community.
10. In addition, the Appellant faulted the lower Court for making a determination on the validity of her 2008 Nigerian customary marriage, arguing that that issue was not pleaded as a distinct triable issue for proper evidence to be led, ventilated, and cross-examined. She argued that the foundational principle of Kenyan civil procedure is that parties are bound by their pleadings and a Court’s mandate is confined to resolving the specific controversies presented by the litigants. She submitted that she was condemned on a point she was never heard on and denied a fair hearing guaranteed by Article 50 (1) of the Constitution.
11. On the question of who should be given the remains for burial and disposal, the Appellant submitted that she is the right person. She argued that, according to the Court of Appeal in SAN vs GW, the ultimate right to bury is heavily determined by who was demonstrably closest to the Deceased in life- the reality of his ‘life narrative.’ She argued that she was the ‘closest’ to the Deceased based on the 18-year relationship and family life with the Deceased. She argued that the Deceased named her as his next of kin in all his official documents. She also stated that she provided daily care for the Deceased until his death for eleven years, while the 1 st Respondent was not aware of his illness.
Respondent’s written Submissions
12. The Respondents submitted that the lower Court’s judgment was warranted and should not be disturbed. On the issue of jurisdiction, they submitted that the Magistrates’ Court had jurisdiction to hear and determine the dispute, arguing that Section 7 (1) of the Magistrates’ Courts Act confers jurisdiction over civil proceedings of a general nature. They argued that a burial dispute is self-evidently a proceeding of a civil nature.
13. In addition, they submitted that the lower Court did not breach rules of natural justice or precedent in determining marital status, arguing that the validity of the marriages was squarely in issue on the pleadings. They argued that the issue of spousal status was directly joined on the pleadings because each party asserted it and denied the other’s, and each led evidence upon it.
14. Lastly, on the question of who should have the right to bury the Deceased, they submitted that the lower Court applied the correct legal principle, and its finding on this issue should not be disturbed. They argued that according to the Court of Appeal in SAN v GW, those with the right to bury the deceased are the spouse, children, parents, and siblings, in that order. They submitted that the claimant must additionally be shown to have been close to the deceased in his lifetime. They argued that the hierarchy is the primary ordering and that the closeness enquiry operates to distinguish qualifying claimants within it. They submitted that the hierarchy does not admit into the contest a person who holds no recognized legal relationship with the Deceased at all.
Issues for Determination
15. Having carefully considered the Grounds of Appeal and the parties’ respective submissions, I find that there is one issue for determination;
a) Whether the lower Court had jurisdiction to hear and determine the matter;
b) Whether the issue of validity of marriages was properly before the Court;
c) Who between the Appellant and the 1 st and 2 nd Respondents has a higher right to bury the Deceased.
The Role of the Appellate Court
16. The role of this Court as the first appellate Court is well-settled. It is trite law that the duty of the first appellate Court is to re-evaluate the evidence in the subordinate Court, both on points of law and facts, and come up with its findings and conclusions. As the court is re-evaluating the evidence, it is required to bear in mind that it had neither seen nor heard the witnesses.
17. This principle was set out in Okeno vs. Republic (1972) EA 32, where the East Africa Court of Appeal stated as follows;
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
18. Based on this authority, this Court is required to undertake a wholesome review of the Respondents’ suit at the lower Court and come up with its conclusion.
Whether the lower Court had jurisdiction to hear and determine the matter
19. The Appellant submitted that the lower Court did not have jurisdiction to hear and determine the matter. She made extensive submissions on this issue and reproduced numerous authorities to buttress her position.
20. However, I do not think that this issue is available for this Court’s determination. I have perused the record and I established that the matter was placed before the Magistrate’s Court pursuant to the direction of the High Court (Namisi, J.) in HCFMISC No. E111 of 2026, made on 25 th March 2026, that the matter be handled by the Magistrate’s Court. In my view, the Appellant should have appealed or sought review of the High Court’s directions ordering the transfer of the case to the Magistrate’s Court. She did not file any appeal or any review of the said directions.
21. Having this unique history on how the matter ended up at the lower Court, I find that the lower Court did not have the jurisdiction to entertain this issue because doing so would be tantamount to reviewing the directions of the superior Court, which is contrary to the hierarchy of courts established by Articles 162 and 165 of the Constitution.
Whether the issue of the validity of marriages was properly before the Court
22. The Appellant also submitted that the lower Court should not have determined the question of validity of the two marriages, arguing that the issue was not properly before the Court. She argued that the validity of the marriages was not pleaded as a distinct triable issue and that no proper evidence was led, ventilated or cross-examined to test the legitimacy of either woman’s status.
23. I have re-examined the record to determine whether the question of the validity of the marriages arose during the trial, and whether the parties adduced sufficient evidence to help the Court determine the same.
24. From the record, the issue of the validity of the marriages arose from the word go. The 1 st and 2 nd Respondents in their supporting affidavits sworn on 25 th March, 2026 and the Plaint dated the same day, accused the Appellant of falsely representing herself as the wife of the Deceased. In these 2 pleadings, the two Respondents claimed that the 1 st Respondent was the lawful wife of the Deceased. The Appellant filed a statement of Defence dated 14 th April 2026, in which she claimed to be lawfully married to the Deceased. She also stated the date of their marriage and the number of years they had lived together.
25. I have seen the parties’ oral testimonies. PW1, PW4 and PW5 gave oral testimony to support the Respondents’ claim that the 1 st Respondent was lawfully married to the Deceased. The 1 st Respondent produced a marriage certificate to prove the marriage as well as other documentary evidence to show that she was his wife. The Appellant cross-examined all these witnesses at length. In addition, DW1 told the Court that she was married to the Deceased and produced a marriage certificate to show the same. She was cross-examined on this issue.
26. Based on this analysis, I am persuaded that the issue of the validity of the two marriages was properly before the Court; it was pleaded from the onset of the case, both parties tendered evidence on the issue, the evidence was tested through cross-examination, and the parties submitted on the same. Thus, I find that the lower Court cannot be faulted for determining this issue.
27. The 1 st Respondent testified that they contracted a marriage on 25 th November, 1984, in Indiana, USA. She produced a Marriage Certificate (particulars withheld) as evidence and/or proof of the existence of the said marriage. The Respondents submitted that the marriage between the 1 st Respondent and the Deceased was a statutory civil marriage. They argued that it was a valid civil marriage under Section 40 of the Marriage Act, 2014.
28. Effectively, this is a foreign civil marriage that calls upon the application of Section 40 of the Kenyan Marriage Act 2014 , which provides a follows;
40. Recognition of foreign marriages as civil marriages in Kenya
A civil marriage contracted in a foreign country shall be recognized as a valid marriage if—
(a) it is contracted in accordance with the law of that country;
(b) it is consistent with the provisions of this Part; and
(c) the parties have the capacity to marry under this Act.
29. Courts have interpreted the above section on several occasions, in which they have given guidance on how a Kenyan Court should assess compliance with the above provision, Section 40 of the Marriage Act.
30. In re Estate of Nyoro Julia Nguhi Wanjiru (Deceased) [2019] KEHC 7456 (KLR) , the Court faced a similar question and found that the foreign civil marriage must conform to the provisions of Part IV of the Marriage Act, Section 35, which requires the marriage certificate to be signed by both parties and witnesses to the said marriage. The Court held as follows;
“One of the requirements for recognition of civil marriages is that they conform to the provisions of Part IV of the Marriage Act. Section 35 which falls under Part IV requires the Registrar of Marriage to cause the marriage certificate to be signed by the parties and by the witnesses to the marriage. The parties are then issued with two copies of the marriage certificate while the Registrar retains one copy thereof. The 1 st Objector did not however produce any such copy duly signed by both himself and the deceased nor did he state his reasons for not producing the documents. Without any such document, it cannot be ascertained that the marriage certificate produced was authentic . … A marriage is a contract and it is therefore required that the parties to the marriage append their signatures thereon to bind them to the contract.”
31. I have seen the said copy of the marriage certificate. It is curious that the parties, i.e the 1 st Respondent and the Deceased did not sign the marriage certificate. In fact, the marriage certificate is incomplete as a section of it was left unsigned. There is a space on the marriage certificate indicating it was to be signed, but it is blank. Without their signatures, I find that the said marriage is not consistent with Section 35 of the Marriage Act , which requires that the Marriage certificate must be signed by both parties. It thus cannot be recognized as a valid civil ceremony in Kenya because it does not meet the requirements in Section 40 of the Marriage Act, 2014.
32. Consequently, I find that the purported civil marriage cannot be recognized in Kenya for the above stated reasons. Thus, in my view, the 1 st Respondent did not prove her marriage to the Deceased.
33. The Appellant also claimed that she was married to the Deceased. She produced a document titled declaration of marriage, which indicates that it was issued by the Nigerian Court. The declarant is the High Court of Abuja. The Appellant admitted that she did not sign anywhere on the document. She also admitted that the Deceased did not sign anywhere on the document. The declaree is her sister, who allegedly witnessed the marriage. She told the Court that the officials asked for one signature and that they (the Appellant and the Deceased) were not asked to sign. This is quite curious.
34. Nonetheless, the Appellant maintained that the declaration was her marriage certificate and proof of her marriage. Assuming that the declaration of the marriage is her marriage certificate, as she has wanted this Court to believe, the next question for interrogation is whether the said marriage certificate is consistent with the provisions of Part IV of the Marriage Act, 2014 on the issuance of a marriage certificate. And particularly on the requirement that the marriage certificate must be signed by both parties.
35. I have already established that the Appellant and the Deceased did not sign the said marriage certificate (the declaration of marriage). For the single reason that they did not sign the marriage certificate, I find that the marriage certificate does not conform to the provisions of Part IV of the Marriage Act, 2014. Consequently, I find that the purported marriage cannot be recognized in Kenya for the above stated reasons. Thus, in my view, the Appellant too did not prove her marriage to the Deceased.
Who between the Appellant and the 1 st and 2 nd Respondents has a higher right to bury the Deceased
36. The Court of Appeal has in several instances given useful guidance on who has the right to bury the deceased. In SAN v GW [2020] KECA 46 (KLR) , the Court outlined, in some sort of hierarchy, the persons with right to bury the deceased. It held as follows;
“The third aspect of this dispute is 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.
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. ”
37. The Court of Appeal in Samuel Onindo Wambi vs. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR elaborated further on the issue of “closeness to the Deceased” and 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.”
38. The above authority gives spouses the first priority to bury the deceased. However, in the instant case, that avenue is not available because I have already found that the 1 st Respondent and the Appellant have failed to prove that their alleged marriages are recognizable in Kenya.
39. The rule in SAN v GW gives the children of the deceased person the second priority to bury the deceased. In this case, the 2 nd Respondent is a child of the Deceased and asked the Court to give her the body for burial. I also note that the Appellant had two children with the Deceased. Although the two minors were not parties to the suit, the Appellant submitted that it was in the best interest of the children to have the Deceased buried in thei
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