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JudgmentFLORENCE MUTHANJE AND DAVID NDWIGA GITITI VS MARK WANJALA KUNGULA19 min read

FLORENCE MUTHANJE AND DAVID NDWIGA GITITI VS MARK WANJALA KUNGULA

High Court at Embu High Court · · Lucy Njuguna


Being an appeal from the judgment of Hon. J.A. Otieno SRM in the Chief Magistrate’s Court at Embu CMCC No. E147 of 2021 delivered on 25th October 2023


  1. The appellants filed a memorandum of appeal dated 27th October 2023 seeking the following orders:
    1. That the judgment in Embu Civil Case No. 147 of 2021 be set aside;
    2. That this appeal be allowed entirely; and
    3. That the costs of this appeal and costs of the lower court be awarded to the appellant.
  2. The appeal is premised on the grounds that, the learned trial magistrate erred in both law and fact:

    1. By shifting the burden of proof in the lower court case to the appellants instead of the respondent proving his case on a balance of probabilities;
    2. When she gave the exhumation orders of the deceased’s body Grace Nelima Wanjala from land parcel number Mbeti/Gachoka/2228 whereas this land was sold to a 3rd party Isaiah Tito Nyaga Kagoce and who was not a party in the lower court proceedings;
    3. When she dismissed the appellants’ case that the deceased had expressed herself on her place of burial during her lifetime and which was on land parcel number Mbeti/Gachoka/2228;
    4. By making a finding that the respondent was the closest parent to the deceased and that it was him who was entitled to bury the deceased in exclusion of her mother;
    5. By failing to strike a balance on the place of burial of the deceased to the benefit of all parties and granting the respondent authority to bury the deceased alone, excluding the appellants and the deceased’s siblings who stated that they do not visit their rural home in Sikhendu where the remains are to be interred and also bearing in mind that the parents of the deceased are now divorced therefore cutting off one part of the family from visiting the grave;
    6. By applying Luhya customary law in determining the place of burial of the deceased disregarding the fact that the parents of the deceased are from the different Embu and Luhya cultures thus discriminating against the 1st appellant who is of Embu tribe and who is no longer a wife of the respondent therefore cutting her off from the body of her own child;
    7. By making a finding that the place that the deceased is currently buried is commercial property;
    8. By finding that the appellants did not obtain the respondent’s consent before burying the body on land parcel number Mbeti/Gachoka/2228 and disregarding the appellants’ evidence that the subject land where the deceased is buried was the parties’ matrimonial property and there was a home thereon. That after burial and during the course of the proceedings in the lower court, the respondent sold the land to Isaiah Tito Nyaga Kagoce hence the reason he is pushing for the exhumation orders; and
    9. By generally disregarding the appellants’ evidence and defense and finding that the respondent had proved his case on a balance of probabilities whereas he had not, and entering judgment in his favour.
  1. Vide amended plaint dated 23rd September 2021, the respondent sought judgment against the appellants jointly and severally for orders that:
    1. The body of Grace Nelima Wanjala (deceased) that was unlawfully buried on the respondent’s land parcel number Mbeti/Gachoka/2228 at Rwika in Mbeere South subcounty be exhumed from there and the same be buried at the plaintiff’s home in Sikhendu village, Sango sublocation, Kongoni location, Likuyani subcounty in Kakamega County;
    2. A declaration be made that the respondent as the father of Grace Nelima Wanjala (deceased) has the legal and customary right to bury his daughter at Sikhendu village, Sango sublocation, Kongoni location, Likuyani subcounty in Kakamega County, the home of the respondent and the deceased; and
    3. The body of Grace Nelima Wanjala (deceased) be released to the respondent for burial at Sikhendu village, Sango sublocation, Kongoni location, Likuyani subcounty in Kakamega County and that a burial permit for the burial be issued to the respondent.
  2. It was the respondent’s averment that since he divorced the 1st appellant, he has been in custody of and has taken care of all his 4 children including the deceased while living in Embu and Kakamega Counties. That the deceased got sick and died at Kenyatta University Referral Hospital and her 2 siblings checked the body into the mortuary at the facility even though they had not visited her while she was ailing. That he began funeral arrangements for the deceased’s interment at Kakamega but was bewildered to learn that the appellants had made parallel arrangements to inter the deceased in Embu County. That the appellants went further and secretly and unlawfully removed the body of the deceased from the mortuary to Gakwegori Funeral Home and hurriedly buried it at Rwika on parcel number Mbeti/Gachoka/2228 which is a commercial piece of land. That letting the body of the deceased to be buried there amounts to abandoning her in death, hence his prayer for exhumation and burial in Kakamega county.
  3. The appellants filed a statement of defense in which they denied the averments made in the plaint. In his reply to defense, the respondent stated that he visited the deceased while she was ailing in hospital but the 1st appellant merely made an appearance at the funeral home. That there was no home in Rwika and that the deceased always lived in Blue Valley estate in Embu, thus the 1st appellant had no right to bury the deceased there. That he was excluded from participating in the burial arrangements and ceremony yet he had every right to be part of them. That the rightful place of burial for the deceased is in Kakamega county.
  4. At the hearing, PW1 was the respondent who testified that it is against Luhya culture for the deceased to be buried in a jungle yet she had a place to call home in Kakamega county. That the place where she was buried is uninhabited and he was denied a chance to give the deceased a decent burial even though he cared for her throughout her life. That he does not have a matrimonial home but the 1st appellant and himself had a matrimonial home in Blue Valley estate in Embu. That he deserves to get closure after the death of the deceased and he urges the court to allow him to bury the remains of the deceased in Kakamega where he has a home.  
  5. On cross-examination, he stated that he owned land parcel number Mbeti/Gachoka/2228 but he sold it in October 2021, one month after filing the suit. That one week after the burial of the deceased, the appellants started putting up structures on the land and the grave was cemented. Before then, the land was bushy and they cleared the part where the deceased was buried. That the change of ownership is not an issue in this case and that he did not enjoin the purchaser of the property as a party.
  6. PW2 was Thomas Wekesa Kungula, PW1’s father who stated that he has lived in Embu County since 1987 but he also has a home in Kakamega county. That the body of the deceased was taken from Gakwegori Funeral Home and buried secretly by the appellants, knowing that the deceased’s father had intended to bury the deceased in Kakamega county at the ancestral home. That the land on which the deceased is buried is undeveloped and culturally, it means that the deceased has been abandoned. That the Luhya culture, which the deceased and respondent ascribe, is patriarchal and the deceased should be buried in the father’s home since she was not married.
  7. DW1 was Florence Muthanje, the 1st appellant, who stated that she was with the deceased as she was ailing and before she died, she said that she wished to be buried at Rwika. That the body of the deceased was moved from Kenyatta University Memorial Home to Gakwegori Funeral Home for ease of transportation and the funeral was attended by about 300 people. It was her testimony that she only visited the respondent’s home once when his mother died and she couldn’t remember the place clearly. That the land on which the deceased is buried now belongs to a new owner who has since destroyed the developments on the land. She stated that the respondent sold the land 1 month after the burial. That exhumation will be traumatic for the family and that the deceased should be left to rest in peace.
  8. On cross-examination, she stated that the deceased had been ailing from HIV/AIDS to which she succumbed. That during her marriage to the respondent, she did not learn anything about his culture and even when she visited his home, there was no house and they stayed in a lodging. She stated that she took care of the deceased since she was born and was present when she died. That she used to live in Rwika on the land which was developed and they also lived in Blue Valley but both homes were in use. That the respondent was there when the body of the deceased was taken home for the burial and prior to this, she and her other children had asked the respondent to let them bury the deceased at Rwika and he promised to consider the request.
  9. It was her evidence that she was grieving deeply and so she did not attend the funeral arrangement meetings but her brothers attended the meetings. That the Rwika land was her developed matrimonial home that had been well maintained and it was purchased during their marriage but the Blue Valley property was in her name. That the burial was not rushed as the deceased was buried at 12 noon according to the Anglican Church system.
  10. DW2 was the 2nd appellant who stated that DW1’s children consider the Rwika 2-acre home to be their home and DW1 was living there. That he was requested by DW1’s children to coordinate the arrangements and the funeral was planned and conducted according to procedure. That exhumation will cause trauma to the family.
  11. On cross-examination, he stated that the deceased left an oral will stating her place of interment. That the Rwika home was developed at the time when DW1 was still employed by the ACK Church. That they also have a home in Blue Valley measuring ¼ acre. That in Kiembu culture, an unmarried daughter was to be buried in the family home and that the respondent as the owner of the Rwika land, had a say in the burial rites of the deceased. That the respondent was never excluded from the funeral arrangements and he had made up his mind on burying the deceased in Kakamega.
  12. DW3 was Duncan Namu who stated that he attended the funeral arrangement meetings and the burial which was normal but delayed a bit in starting. On cross-examination, he stated that the respondent wanted the deceased to be buried in Kakamega but the rest of the family wanted the burial to be in Rwika. That DW1 had been living on the land where the deceased is buried and there is a house on it. That when the respondent raised issues, he was advised that the issues be settled within the family.
  13. DW4 was Faith Wanjala, sister to the deceased, who stated that her relationship with the respondent went sour after the death of the deceased since he disagreed with the deceased’s chosen place of burial. That the deceased had named her place of burial during a function in December 2020 and she repeated the same to DW1 while in hospital. That the last time they visited Kakamega was in 2012 and 2013 and they put up with relative while on the visit.
  14. That she was shocked when the respondent filed the suit since all the deceased’s siblings attended the burial which was normal. That the Rwika property is their home and the respondent used to take them there to visit. On cross-examination, she stated that the deceased’s wish to be buried in Rwika was made verbally and she did not have any evidence. That she and her siblings grew up on both Rwika and Blue Valley properties. She stated that the respondent participated in the funeral arrangements but he was not there for the memorial ceremony.
  15. The trial court warned itself of the drastic nature of exhumation orders and went on to issue the same, finding in favour of the respondent.
  16. The appeal herein was canvassed by way of written submissions.
  17. It was the appellants’ submission that in as much that the respondent stated that he single-handedly took care of the deceased after the divorce in 2017, he did not prove these allegations. That the respondent did not testify on how close he was with the deceased thus the trial court erred in holding that he was the closest parent. That by the time the 1st appellant and the respondent were divorcing, all the children were adults and the deceased was 25 years old, not depending on the respondent for sustenance as alleged. Moreover, that DW4 testified that both parents were supportive of the children even after the divorce.
  18. It was their submission that the 1st appellant and respondent had homes in Blue Valley and in Rwika, which homes their children grew up in. That the deceased’s death wishes as stated in evidence, was not rebutted by the respondent and they relied on the case of SAN v. GW (2020) eKLR. It was their argument that there was no reason not to heed to the deceased’s wishes. Further reliance was placed on the cases of Nyariba Nyankoma v. Mary Bonareri Munge (2010) eKLR and Lydia Bunyali v. Medical Officer of Health TransNzoia County & Another (2021) eKLR and urged that the respondent failed to call the relevant experts to testify on the Luhya customary law that he wishes to rely on.
  19. They submitted that there is sufficient evidence to prove that land parcel number Mbeti/Gachoka/2228 is matrimonial property thus it couldn’t have been disposed in the manner allegedly disposed of by the respondent alone and in the pendency of the lower court proceedings. That it was improper to make an order of exhumation before hearing the purchaser’s side of the story of how he acquired the land. It was their argument that the land is not commercial property since they had a home on it and that the user of the land could not have changed to commercial following the alleged sale. They urged the court to allow the appeal.
  20. In his submissions, the respondent heavily relied on the case of SAN v. GW (2020) eKLR and argued that Luhya customary law governs the burial place of a daughter who was unmarried. He further relied on Article 11(1) of the Constitution and Section 3 of the Judicature Act which provide for recognition of African Customary Law. He argued that as the then registered proprietor of land parcel number Mbeti/Gachoka/2228, he had the right to determine everything pertaining the land according to section 24(a) of the Land Registration Act.
  21. That he produced proof of his support to the deceased and his other children to show that he was the parent who was closest to the deceased. That the 1st appellant abandoned the deceased when she was ailing and when asked, she did not remember which hospitals the deceased was taken to. He further relied on the cases of PZG & 2 Others v. TMT (2019) eKLR, JMK v. DMK (2013) eKLR and Christopher Muthini Mbatha v. Florence Mukii Mukita (2008) eKLR where the courts held that unmarried deceased person should be interred at his birth home.
  22. The issue for determination is whether the appeal has merit.
  23. The role of a first appellate court is to re-examine the evidence adduced at trial in order to determine the appeal. This was the holding in the case of Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the court held:

“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...”

  1. The deceased died on 09th September 2021 and was buried in Rwika, Embu County on 20th September 2021. The amended plaint was filed on 24th September 2021 through which the respondent sought for and was granted the impugned orders. The contention herein is that the trial court gave an order that the remains of the deceased be exhumed and buried in Kakamega county where the respondent alleges is the right place of burial for the deceased. The respondent herein argued that the place of burial of an unmarried adult daughter under Luhya customary law, is her father’s ancestral home. On the other hand, the appellants submitted that according to Kiembu customary law, the deceased ought to be buried at her parents’ home.
  2. In her evidence, the 1st appellant stated that the land in Rwika, where the deceased’s remains lie, is her matrimonial home jointly acquired with the respondent while their marriage subsisted. The respondent submitted that at the time of burial of the deceased, the land was in his name thus he has all the right to everything happening to it, including interment of his daughter, which ceremony he was excluded from. The respondent sold the land to one Isaiah Tito Nyaga Kagoce and he himself, in his evidence, stated that he sold the land after filing the suit and shortly after the deceased was buried on the land. The said Isaiah Tito Nyaga Kagoce was not a witness in the trial court and the appellants took issue with the fact that he was not called as a witness.
  3. Presently, there is an ongoing case before the Environment and Land Court where the 1st appellant filed plaint dated 14th February 2023 seeking judgment against the respondent herein and Isaiah Tito Nyaga Kagoce for orders for a declaration that the transfer of parcel number Mbeti/Gachoka/2228 was fraudulent therefore null and void, that the land registrar be compelled to cancel registration of the transfer of title and the same be registered in the joint  names of the 1st appellant  and the respondent and that an injunction be issued against Isaiah Tito Nyaga Kagoce from interfering with the said piece of land. The matter is scheduled for hearing on 04th December 2024.
  4. In that suit, the 1st appellant, who is the plaintiff therein, has raised the issues raised before the trial court regarding exhumation of the remains of the deceased and she is contending for her spousal rights over the property which she stated was acquired during subsistence of her marriage to the respondent, hence it is matrimonial property, whose disposal was done without her consent. The 1st appellant herein, being the plaintiff in the ELC case, produced a copy of greencard showing that the Land was registered to Isaiah Tito Nyaga Kagoce on 15th October 2021, almost one month after the deceased was interred.
  5. As at the time of the burial, the land was registered to the respondent herein and any other issues regarding the land, its acquisition, ownership or disposition will be determined by the ELC, including the involvement of Isaiah Tito Nyaga Kagoce. It is therefore immaterial that Isaiah Tito Nyaga Kagoce was not called as a witness in the present case.
  6. Back to the customary law argument, the two competing arguments made by the opposing sides give precedence to Africa Customary Law. However, the trial court was not treated to any testimony from experts on the subject of the 2 communities’ customary laws to verify the correctness thereof. It was necessary for the parties to produce expert evidence that would enable the court to verify the validity of the African Customary Laws in question, since the court is not equipped with such expertise. Article 2(4) of the Constitution provides:

“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”

  1. It is not in doubt that the parties herein ascribe to different African Customary Laws, which have ended up creating a conflict regarding applicable burial rites for the deceased who was an unmarried adult female. Section 3(2) of the Judicature Act 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.”

  1. In the case of Kimani vs. Gikanga (1965) EA 735 at page 739, the court stated thus on proof of customary law;

“As a matter of necessity, the customary law must be accurately and definitely established. The court has a wide discretion as to how this should be done but the onus to do so must be in the party who puts forward the customary law. This might be done by reference to a book or document of reference and would include a judicial decision but in view especially of the apparent lack in Kenya of authoritative textbooks on the subject, or of any relevant case law, this would in practice usually mean that the party propounding the customary law would have to call evidence to prove that customary law, as he would prove the relevant facts of his case.”

  1. The trial court was guided by the case of Edwin Otieno Obanjo v. Martin Odera Okumu (1996) eKLR where the court held that customary law can be applied by courts in exercise of their wide unfettered discretion. The court was also guided by the sentiments of the court in the case of Virginia Edith Wambui Otieno v. Joash Ochieng & Anor (1987) eKLR (the S.M. Otieno Case) where the court appreciated the different customary laws governing burial rites and it stated that resolution of issues regarding burial rites should be determined based on the unique set of facts before the court. It was the trial magistrate’s view, being guided by the Court of Appeal decision in the case of SAN v. GW (2020) eKLR that the parent who was closest to or related better with the deceased had the right to inter her remains. This court held that:

“In Samuel Onindo Wambi vs. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR it was explained that a person’s conduct towards a deceased person while alive could extinguish his or her right to bury the deceased. Since the appellant did not show any closeness towards the deceased after their separation and she did not show any sympathy towards him when he was ailing, it was only just that the deceased’s wishes and choice of where he was to be buried were to be honoured.”

  1. In the case of Samuel Onindo Wambi v. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR, the court held:

“ …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”.

  1. The respondent stated that all his 4 children relied on him for sustenance even though they are all adults, a fact that was strongly disputed by the 1st respondent. The respondent also produced his M-pesa statement showing transactions where he sent money to his children on various occasions. He stated that he also used to send food items to his children who lived in other towns often. The 1st appellant stated that when the deceased was ailing and in hospital, the respondent did not visit her but went later on despite the deceased asking for him. DW4, the deceased’s sister stated that she was the closest to the respondent and that her and all her siblings depended on their parents in equal measure.
  2. From the evidence, the 1st appellant and the respondent divorced when the children were no longer of tender age and that they were raised at their blue valley home. On a balance of probabilities, the issue of closeness of the deceased to the respondent more than the 1st appellant is to be determined in equal measure. The tie breaker, in my view, it still the issue of African Customary Law, which was determined by the trial court without any evidence considered to that effect. That being said, it is my finding that the trial court erred in granting the respondent the orders prayed without any evidence adduced in support of the respondent’s African customary law burial rites among the Luhya community.
  3. In the end, I find that the appeal is meritorious and it is hereby allowed. The judgment in Embu Civil Case No. 147 of 2021 is hereby set aside. There shall be no order as to costs.
  4. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    FLORENCE MUTHANJE AND DAVID NDWIGA GITITI VS MARK WANJALA KUNGULA FLORENCE MUTHANJE AND DAVID NDWIGA GITITI VS MARK WANJALA KUNGULA