1. On 25/5/2026, this Court declined to grant the orders sought in the Motion dated 20/5/2026 and discharged the orders of 22/5/2026. It directed that it would give its reasons on 10/7/2026. These are the reasons.
2. In the said Motion, the applicants had sought an order to restrain the respondents from burying the remains of one Claudius Matengo Oyoo (‘the deceased’) pending the hearing and determination of the appeal and the suit in the lower Court being Nyando Civil Suit No. E126 OF 2026, Daniel Matengo & Another vs Rosemary Adhiambo Owino & Another .
3. The facts of the case were simple. The respondents were the widow and daughter of the deceased, respectively. On the other hand, the applicants were the deceased’s 1st born son and the deceased’s elder brother, respectively. The deceased died on 13/4/2026 at Nightingale Medical Centre, Kisumu County and his remains were preserved at Aga Khan Funeral Home, Kisumu for interment on 23/5/2026.
4. Disagreements arose between the parties as to the place of his interment at his home on LR No. Kisumu/Kabodho-West/3031 . While the applicants insisted that the deceased be buried on the right hand side of the matrimonial house allegedly in accordance with the family’s religious beliefs and cultural practices, the respondents would hear none of that. They insisted on having the deceased buried at a burial site (family burial yard) allegedly identified by the deceased during his lifetime within his homestead.
5. With the disagreements, the applicants approached the lower court with a suit seeking the following declarations: -
“(a) A declaration that the burial site of the deceased ought to be determined in accordance with Luo customary law, customs, and traditions .
(b) A declaration that the defendants have no exclusive legal or customary mandate to unilaterally determine the burial site of the deceased.
(c) A declaration that under Luo customary law, the proper burial site for the deceased, being a patriarch, is on the right-hand side of the matrimonial house and not on the outskirts of the homestead.
(d) An order directing that the remains of the deceased be interred on the right-hand side of the matrimonial house situated on Land Parcel No. Kisumu/Kabodho-West/3031 .
(e) A declaration that funeral planning and burial arrangements concerning the deceased ought to involve the immediate family, clan elders, siblings, children, and local administration in accordance with Luo customary law and practice.”
6. Contemporaneous with the Plaint, the applicants lodged a Motion on Notice dated 14/5/2026 in which they sought to restrain the respondents from collecting from Aga Khan Funeral Home , the remains of the deceased for internment. That application was heard and dismissed by the trial court. The reasons for dismissal was that the applicants had not established a prima facie case with any probability of success. That no expert witnesses had been presented to offer expert evidence on Luo Customary Law, that granting the orders would lead to heavy financial burden on the family and that the balance of convenience tilted in favour of having the internment take place expeditiously.
7. It is this decision that the applicants appealed against raising 13 grounds vide a Memorandum of Appeal dated 20/5/2026. And on the aforesaid grounds, the applicants pursued the aforesaid injunctive orders.
8. As in all interlocutory injunctions, an applicant must satisfy the principles set out in the Giella vs Cassman Brown Case. These are that; an applicant has to demonstrate a prima facie case with a probability of success, that an injunction would not normally be granted unless the applicant will otherwise suffer irreparable loss that cannot be compensated by an award of damages and in the event the Court is in doubt, it will determine the matter on a balance of convenience.
9. It was submitted for the applicants that since the deceased was a Luo, he should be buried in accordance with Luo customs. That the 1st respondent lost her right of priority because she had been away during the deceased’s illness. That issues of customs could only be proved by calling clan elders at the trial. The cases of Apeli vs Buluku (1980) eKLR and Samuel Muchai & Others vs Ann Nyathira (2014) eKLR were cited in support of those submissions.
10. It was further submitted that whereas those closest to the deceased have a right to bury him, a person’s conduct prior to the demise of the deceased can extinguish that right. The case of Samuel Onindo vs COO (2015) eKLR was cited in support of that proposition. That the applicants had pleaded particulars of abandonment by the 1st applicant in paragraph 22 of the Plaint which displaced her right of priority over the body of the deceased. That the substratum of the case needed to be preserved.
11. On their part, it was submitted for the respondents that the 1st respondent, being the widow, was the one who had closest proximity to the deceased and therefore had the right to bury him. That she had spent over a million shillings in preparation for the burial. That the respondents had taken care of the deceased’s medical bills before his demise. The 1st respondent’s spousal right under Article 45 were being infringed. That there was no evidence that Luo Customary Law had been established before the lower court.
12. On prima facie , it was upon the applicants to establish a prima facie case with a probability of success. That the deceased was a Luo man, he had lived under Luo customs, he practiced the same during his lifetime, had the wishes that those customs do apply after his demise and above all, prove those Luo customs. It is not automatic that once one is an african, the traditional customs appurtenant to his community apply to him on his demise. This is so notwithstanding the provisions of section 3(2) of the Judicature Act.
13. Section 51 of the Evidence Act provides: -
“(1) When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right of persons who would be likely to know of its existence if it existed are admissible.
(2) For the purposes of subsection (1) of this section the expression "general custom or right" includes customs or rights common to any considerable class of persons.”
14. From the foregoing, it is clear that for the Court to hold in favour of the applicants, it was for them to prove or present prima facie evidence in support of their case. This Court looked at both the material before the trial court and before it and established that there was no witness statements alleging that the deceased had expressed the wish to be buried in accordance with Luo Customary Law. Further, there were no witness statements on record stating or establishing what the Luo customs on burial to be. Without any such material on record, the applicants had failed to establish a prima facie case with any probability of success.
15. The Court holds as aforesaid having in mind the strong sentiments of the Courts in the cases of John Omondi Oleng vs Sueflan Radal (2012) eKLR and Ruth Wanjiru Njoroge vs Jemimah Njeri Njoroge & Another (2004) eKLR wherein it was held that on matters burial, a married spouse has priority to the body of a deceased person.
16. In the present case, there was no dispute that the 1st respondent was married to the deceased. There was no evidence or suggestion that they had separated or were estranged before the deceased passed on. With that, the 1st respondent had the priority over everyone else on how the deceased husband was to be buried. The allegations of abandonment were not enough to displace the presumption of closeness and priority of the widow.
17. The second principle which the applicants had to surmount was that if the orders sought were not granted, they were to suffer irreparable loss. They did not address this ground. The Court’s view is that, holding the remains of a deceased person in a Morgue while litigating on the place of its internment is calamitous. Firstly, the relatives suffer much anguish and emotional trauma. Secondly, there are prohibitive expenses that are to be incurred by way of the morgue’s daily charges and the feeding of the mourners. To this Court’s opinion, it would have been counter productive to hold the remains of the deceased in the Morgue than to inter the same. In the event, the applicants prove their case at the trial, a reburial can be ordered. It would be less expensive and summary in nature. On this limb, the applicants failed.
18. The third limb was the balance of convenience. This was in favour of letting the internment take place while the applicants prove their case before the trial court.
19. Those then were the reasons for the decision made on 25/5/2026.
It is so ordered.
2. In the said Motion, the applicants had sought an order to restrain the respondents from burying the remains of one Claudius Matengo Oyoo (‘the deceased’) pending the hearing and determination of the appeal and the suit in the lower Court being Nyando Civil Suit No. E126 OF 2026, Daniel Matengo & Another vs Rosemary Adhiambo Owino & Another .
3. The facts of the case were simple. The respondents were the widow and daughter of the deceased, respectively. On the other hand, the applicants were the deceased’s 1st born son and the deceased’s elder brother, respectively. The deceased died on 13/4/2026 at Nightingale Medical Centre, Kisumu County and his remains were preserved at Aga Khan Funeral Home, Kisumu for interment on 23/5/2026.
4. Disagreements arose between the parties as to the place of his interment at his home on LR No. Kisumu/Kabodho-West/3031 . While the applicants insisted that the deceased be buried on the right hand side of the matrimonial house allegedly in accordance with the family’s religious beliefs and cultural practices, the respondents would hear none of that. They insisted on having the deceased buried at a burial site (family burial yard) allegedly identified by the deceased during his lifetime within his homestead.
5. With the disagreements, the applicants approached the lower court with a suit seeking the following declarations: -
“(a) A declaration that the burial site of the deceased ought to be determined in accordance with Luo customary law, customs, and traditions .
(b) A declaration that the defendants have no exclusive legal or customary mandate to unilaterally determine the burial site of the deceased.
(c) A declaration that under Luo customary law, the proper burial site for the deceased, being a patriarch, is on the right-hand side of the matrimonial house and not on the outskirts of the homestead.
(d) An order directing that the remains of the deceased be interred on the right-hand side of the matrimonial house situated on Land Parcel No. Kisumu/Kabodho-West/3031 .
(e) A declaration that funeral planning and burial arrangements concerning the deceased ought to involve the immediate family, clan elders, siblings, children, and local administration in accordance with Luo customary law and practice.”
6. Contemporaneous with the Plaint, the applicants lodged a Motion on Notice dated 14/5/2026 in which they sought to restrain the respondents from collecting from Aga Khan Funeral Home , the remains of the deceased for internment. That application was heard and dismissed by the trial court. The reasons for dismissal was that the applicants had not established a prima facie case with any probability of success. That no expert witnesses had been presented to offer expert evidence on Luo Customary Law, that granting the orders would lead to heavy financial burden on the family and that the balance of convenience tilted in favour of having the internment take place expeditiously.
7. It is this decision that the applicants appealed against raising 13 grounds vide a Memorandum of Appeal dated 20/5/2026. And on the aforesaid grounds, the applicants pursued the aforesaid injunctive orders.
8. As in all interlocutory injunctions, an applicant must satisfy the principles set out in the Giella vs Cassman Brown Case. These are that; an applicant has to demonstrate a prima facie case with a probability of success, that an injunction would not normally be granted unless the applicant will otherwise suffer irreparable loss that cannot be compensated by an award of damages and in the event the Court is in doubt, it will determine the matter on a balance of convenience.
9. It was submitted for the applicants that since the deceased was a Luo, he should be buried in accordance with Luo customs. That the 1st respondent lost her right of priority because she had been away during the deceased’s illness. That issues of customs could only be proved by calling clan elders at the trial. The cases of Apeli vs Buluku (1980) eKLR and Samuel Muchai & Others vs Ann Nyathira (2014) eKLR were cited in support of those submissions.
10. It was further submitted that whereas those closest to the deceased have a right to bury him, a person’s conduct prior to the demise of the deceased can extinguish that right. The case of Samuel Onindo vs COO (2015) eKLR was cited in support of that proposition. That the applicants had pleaded particulars of abandonment by the 1st applicant in paragraph 22 of the Plaint which displaced her right of priority over the body of the deceased. That the substratum of the case needed to be preserved.
11. On their part, it was submitted for the respondents that the 1st respondent, being the widow, was the one who had closest proximity to the deceased and therefore had the right to bury him. That she had spent over a million shillings in preparation for the burial. That the respondents had taken care of the deceased’s medical bills before his demise. The 1st respondent’s spousal right under Article 45 were being infringed. That there was no evidence that Luo Customary Law had been established before the lower court.
12. On prima facie , it was upon the applicants to establish a prima facie case with a probability of success. That the deceased was a Luo man, he had lived under Luo customs, he practiced the same during his lifetime, had the wishes that those customs do apply after his demise and above all, prove those Luo customs. It is not automatic that once one is an african, the traditional customs appurtenant to his community apply to him on his demise. This is so notwithstanding the provisions of section 3(2) of the Judicature Act.
13. Section 51 of the Evidence Act provides: -
“(1) When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right of persons who would be likely to know of its existence if it existed are admissible.
(2) For the purposes of subsection (1) of this section the expression "general custom or right" includes customs or rights common to any considerable class of persons.”
14. From the foregoing, it is clear that for the Court to hold in favour of the applicants, it was for them to prove or present prima facie evidence in support of their case. This Court looked at both the material before the trial court and before it and established that there was no witness statements alleging that the deceased had expressed the wish to be buried in accordance with Luo Customary Law. Further, there were no witness statements on record stating or establishing what the Luo customs on burial to be. Without any such material on record, the applicants had failed to establish a prima facie case with any probability of success.
15. The Court holds as aforesaid having in mind the strong sentiments of the Courts in the cases of John Omondi Oleng vs Sueflan Radal (2012) eKLR and Ruth Wanjiru Njoroge vs Jemimah Njeri Njoroge & Another (2004) eKLR wherein it was held that on matters burial, a married spouse has priority to the body of a deceased person.
16. In the present case, there was no dispute that the 1st respondent was married to the deceased. There was no evidence or suggestion that they had separated or were estranged before the deceased passed on. With that, the 1st respondent had the priority over everyone else on how the deceased husband was to be buried. The allegations of abandonment were not enough to displace the presumption of closeness and priority of the widow.
17. The second principle which the applicants had to surmount was that if the orders sought were not granted, they were to suffer irreparable loss. They did not address this ground. The Court’s view is that, holding the remains of a deceased person in a Morgue while litigating on the place of its internment is calamitous. Firstly, the relatives suffer much anguish and emotional trauma. Secondly, there are prohibitive expenses that are to be incurred by way of the morgue’s daily charges and the feeding of the mourners. To this Court’s opinion, it would have been counter productive to hold the remains of the deceased in the Morgue than to inter the same. In the event, the applicants prove their case at the trial, a reburial can be ordered. It would be less expensive and summary in nature. On this limb, the applicants failed.
18. The third limb was the balance of convenience. This was in favour of letting the internment take place while the applicants prove their case before the trial court.
19. Those then were the reasons for the decision made on 25/5/2026.
It is so ordered.