( Being an appeal from the judgment of Hon. J.P. Mkala (RM) in Siaya CMCC No. E038 of 2026 dated 16/3/2026)
1. The appeal arises from the judgment of Honourable J. P. Mkala in Siaya CMCC No. E038 of 2026 dated 16/3/2026 wherein he dismissed the Appellant’s suit and handed the body of Lilian Atieno Muga to the 1 st Respondent for burial with leave for the extended family to participate in the burial. The Appellant was also ordered to surrender the burial permit, failing which the 2 nd Respondent shall proceed to issue a fresh one to facilitate the burial.
2. The Appellant was aggrieved by the aforesaid decision and duly filed her Memorandum of Appeal dated 16/3/2026, wherein she raised the following grounds of appeal:
i) That the trial court erred in law and in fact and misdirected itself on the law regarding burial disputes;
ii) That the trial court erred in law and in fact by failing to consider clear evidence of spousal neglect and cruelty by the 1 st Respondent towards the deceased;
iii) That the trial court erred in law and in fact by failing to hold that the 1 st Respondent had conducted himself towards the deceased in a manner that divested him of the spousal right to bury his wife;
iv) That the trial court erred in law and in fact by failing to hold that the 1 st Respondent, though still lawfully married to the deceased at the time of her death, was divested of the spousal right to bury his wife by virtue of his conduct towards the deceased;
v) That the trial court erred in law and in fact by determining a spousal burial dispute on the basis of child support rather than spousal support;
vi) That the trial court erred in law and in fact by failing to hold that there were discernible and clear wishes of the deceased regarding her preferred place of burial;
vii) That the trial court erred in law and in fact by failing to hold that there were no compelling reasons to disregard the clear wishes of the deceased regarding her preferred place of burial;
viii) That the trial court erred in law and in fact by failing to uphold the clear wishes of the deceased regarding her preferred place of burial;
ix) That the learned magistrate erred in fact and law in giving the 1 st Respondent custody of the deceased’s body for burial against the deceased’s wishes, and despite the 1 st Respondent’s conduct towards the deceased which divested him of the right to bury the deceased;
x) That the trial court erred in law and in fact by failing to consider documentary and oral evidence submitted by the Appellant; and
xi) That the trial court erred in law and fact when he decided the whole case against the weight of the evidence.
The Appellant therefore prayed that the appeal be allowed and the orders of the trial court issued on 16/3/2026 be set aside and or vacated and that the costs of the appeal be borne by the Respondent.
3. This being the first appellate court, its duty is well cut out namely, to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis so as to decide whether or nor to uphold the decision of the trial court. the court will have to contend with the fact that it neither saw nor hard the witnesses as they testified and must therefore provide due allowance for that. See Selle Vs. Associated Motor Boat Co. Ltd [1968] EA 123.
4. Vide the plaint dated 23/2/2026, the 1 st Respondent sued the Appellant and sought several reliefs inter alia; that a declaration that the Plaintiff (1 st Respondent) is entitled to inter the remains of his deceased wife Lilian Atieno Muga; a permanent injunction do issue restraining the 1 st Defendant (Appellant) by herself, agents, family members, relatives or any person acting under instructions from removing and disposing the body of the deceased Lilian Atieno Muga from Home Ground Funeral Home; an order directing the Plaintiff (1 st Respondent) to inter the remains of his deceased wife in their matrimonial home situate at Wich Lum, Nyaguda Sub Location Bondo Sub County and costs of the suit.
5. The 1 st Defendant (Appellant) admitted the existence of a marriage between the Plaintiff and the deceased as pleaded in the Plaint save that for the entirety of the marriage, the Plaintiff subjected the deceased to a lot of suffering which forced her to seek shelter at her sister’s place and at her parents’ home together with her children. That the Plaintiff and deceased parted ways in 2019 and have never been together until her demise. That during the deceased illness, the Plaintiff did not come to her aid or the children. That the deceased had made her wish to be buried at her parents’ home but not at her matrimonial home.
6. The case proceeded for hearing in earnest on 13/3/2026. Thomas Otieno Okwach (PW1) adopted his witness statement dated 10/3/2026 as his evidence in chief. He stated that the deceased was his legally marred wife as they had solemnized their marriage under the Marriage Act 2014. That the deceased had been suffering from cancer and that at first, she used to live with her sister at Siaya town while pursuing her KMTC studies and later at her mother’s home. That he allowed his wife to be at her mother’s place as he could not manage to be with her due to the short period of permission by his employer (TSC). That he had rented a house for his wife within Siaya town as she undertook her studies. That his employer insurance cover catered for his wife and children. That his brother and sister supported his spouse and children. That he has no dispute with his wife during her lifetime. That he seeks the courts to allow him buy the remains of his wife.
On cross examination, he stated inter alia; that he does not have evidence showing that he enrolled the deceased at KMTC and also does not have receipts hsowing tha the paid fees; that the deceased was staying with her mother at the time she wasailing; that he used to send money to the deceased for the children upkeep; that he did not have receipts showing rent payments.
7. Charles Omondi Otiato (PW2) adopted his sttemnt dated10/3/2026 as his evidence in chief. That he was not aware of any issues between the Plaintiff and the deceased. That he is also not aware of the wishes of the deceased on the issue of her burial.
8. Cyprian Okwach Obonyo (PW3) adopted his witness statement dated 10/3/2016 as his evidence in chief. He stated that he did not know if the Plaintiff had any issues with the deceased. That there was no wish made by the deceased regarding the place of her burial.
9. Leonida Anyango Muga (DW1) adopted her witness statement dated 6/3/2026 as her evidence in chief. That she had no agreement with the Plaintiff to take care of his children and his wife. That the deceased had informed her that she should not be taken back to her matrimonial home in Bondo because her in-laws had neglected her. that she decided to take back her daughter and her children because the Plaintiff had neglected them. That the deceased informed her that she should not be taken to Bondo whether dead or alive.
On cross examination, she stated inter alia; that the deceased had been married to the Plaintiff who paid her dowry and alter had a church wedding ; that the deceased did not l odge any complaint to ay Government agency over any dispute with the Plaintiff; that eh deceased’s school fees atKMTC was paid by HELB; that the deceased indicated that she should not be taken to Bondo.
10. Irene Muga (DW2) adopted her witness statement dated 6//3/2026 as her evidence in chief. She stated that the deceased never lived in the Plaintiff’s house as she used tolive with her. that thedceased used to visit her matrimonial home but later stopped after a dispute arose.
On cross examination, she stated inter alia; that she is the one who took the body to the mortuary; that she is the one who gave instructions to the mortuary attendant not to allow any unauthorized person to view the body; that she is the one who lived with the deceased; that the Plaintiff’s marriage with the deceased broke down in 2019; that the Plaintiff did not support her sister ; that she is aware that the Plaintiff use to send money to the deceased; that the Plaintiff never contributed money towards the deceased’s medical bill.
11. George Oluoch Muga (DW3) adopted his statement dated6/3/2026 as his evidence in chief. On cross examination, he stated inter alia; that the deceased was lawfully married to the deceased; that there was no written will made by the deceased but had spoken orally; that one Father Ben had been paying fees for one child but that there are no receipts to that effect; that the Plaintiff has not been in the picture since members of the church had been sponsoring the kids; that he had been with the deceased for three years after she came home.
12. The 2 nd Defendant called Catherine Mulama (DW4) who adopted her statement dated 2/3/2026 as her evidence in chief. That the body of the deceased was brought to them on 14/2/2026 by Irene Muga (DW2) who directed that nobody would be allowed to view the body without her consent. That the mortuary fee at the time stood at Kshs 13,450/.
13. After closure of the respective cases, the trial court later considered the matter and arrived at the impugned judgment which precipitated the appeal herein.
14. The appeal was canvassed by way of written submissions. Both parties duly complied.
15. Vide submissions dated 7/4/2026, the Appellant’s learned counsel started off by setting out the law governing burial disputes in Kenya, before turning to whether the trial court correctly applied the facts to the law in reaching the impugned decision.
The law on the right to Burial in Kenya
While a man or woman would have the primary right to bury their deceased spouse, courts have taken a very dim view of people who abandon their spouses for years, and only turn up to claim burial rights once the spouse is dead.
In SAN Vs. GW, Civil Appeal No. 1 of 2020 [2020] eKLR, the Court of Appeal (Ouko P) Gatembu & Murgor, JJ.A) laid down the law on burial disputes in a similar case thus:
“…. courts have also been unanimous as far as we can tell from decided cases that, both laws, common and customary, have one thin in common, in so far as burial is concerned; that the wishes of the deceased, though not binding, must so far as is possible, be given effect, so long as those wishes are not contrary to custom or to the general law or policy.
See Apeli vs. Buluku (1980) Eklr and Samuel Mungai Mucheru & 3 Others vs. Ann Nyathira [2014] eKLR.
The wishes or will on how the deceased’s remains will be disposed of upon death are not, as a general rule binding because in the first place, there is no property in a dead body and secondly, because a dead person cannot take part in the decision of his or her own burial. There must however be compelling reasons for not heeding the expressed wishes of the deceased.
As was observed by the court in SM case, it is only through legislation that matters such as the deceased’s wishes will be given a permanent place in law.
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. Regarding this last limp, the Court of Appeal in Samuel Wambi Vs. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR expressed the following view:
“…. a person’s conduct to a deceased person can extinguish the right o 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 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.”
16. The Appellant also relied on the decision of the High Court in Nakuru (Maraga J – as he then was) in Oliver Bonerari Omoi & 5 Others v. Joseph Baweti Orogo (2010) eKLR, a dispute over burial rights of Mary Kemunto Basweti, a deceased woman from Kisii. The Respondent Joseph Bosweti Orogo, claimed he married the deceased under Kisii Customary Law in 1960’s by paying dowry (15 cows and 8 goats) and sired 8-9 children with her. the trial court found in his favour, granting the right to bury her in Kisii. However, the appellate court reversed this, holding that the deceased expressed wish to be buried in Njoro (her acquired home) and her 30 – year estrangement from the Respondent override his customary law right. In reaching its determination, the Court was guided by the deceased’s final wishes and the nature of her relationship with her estranged husband both of which extinguished his reight as a widower to bury her.
Also, the Appellant relies on the decision of the Court of Appeal in Edwin Otieno Ombajo Vs. Martin Odera Okumu [1996] eKLR, where it was held that the husband’s right to bury his deceased wife’s body may be superseded by the deceased’s wishes if the husband behavior renders him underserving to bury the remains of his wife.
17. In reaching the conclusion, and taking away the husband’s right to burry his wife, the Court of Appeal held as follows:
“The facts of this matter are clear that the Respondent appears to have lost all interest in the deceased and their two children of the marriage as soon as the deceased left the matrimonial home. Although the Respondent stated tin the superior court that the deceased used to visit him at his chambers, the surrounding circumstances suggest otherwise. If the deceased indeed, used to visit the Respondent as he alleged, and he used to give her some money, it is not clear why the Respondent was not regularly remitting to her the maintenance money. Nor is it clear to us whey he was not meeting her medical bills and those of the children.
Evidence was adduced in the superior court to the effect that the Respondent was so hostile to the deceased and the children of their marriage that sometime in 1992, when the deceased and the children of their marriage that sometimes in 1992, when the deceased wrote to him to request for money for the medical expenses of the children, he refused to pay arguing that the children were not sick when she left the matrimonial home with them. That is how callous the Respondent was to the plight of the deceased and the children.
It is also, noteworthy that no specific efforts were made by the Respondent to urge the deceased to resume cohabitation.”
18. On the issue of whether the 1 st Respondent has the right to bury his deceased wife in light of his conduct towards her, it was submitted that while it was never denied that the 1 st Respondent was the deceased’s husband, the Appellant and her witnesses submitted uncontroverted evidence demonstrating neglect and abandonment of the deceased including in her final moments when she was facing death from cancer. As was held in the above cases, such conduct can extinguish a husband right to bury his wife.
19. Evidence presented on behalf of the Appellant showed that he deceased took off from the 1 st Respondent in 2019 following abuse by the 1 st Respondent, and went to live with one of her sisters in Siaya. While there, she was diagnosed with cancer. She later went to live with her mother, the Appellant in her home in Komenya. She took her kids to live with her after the Appellant neglected them too. The neglect was so bad that one of the children suffered a stroke due to poor medication for sickle cell disease. At no point did Lilian return to the Appellant. more importantly, at no point did the Appellant visit her to inquire into her health and welfare, or to support her, including after her cancer diagnosis and in her terminal months.
20. In its impugned decision, the trial court did not consider this crucial evidence of neglect and abandonment that proved that the 1 st Respondent never visited the deceased for seven years. That the Appellant also adduced evidence to show that the 1 st Respondent did not support the deceased to enroll for her course at KMTC as he alleged in his plaint. Contrary to his allegations, that he provided rent and fees, the Appellant provided evidence showing that the deceased lived with her sister (DW2) in Siaya, and that her fees were paid partly by HELB and partly by the deceased and her siblings. In its impugned decision, the trial court held that Both PW1 and DW2 were unable to prove who between the two paid rent for and on behalf of the deceased. In reaching this conclusion, the trial court disregarded clear evidence adduced by DW2 who testified that she accommodated the deceased in her house in Siaya. The trial court erred in fact and in law by requiring DW2 to provide evidence that she paid rent for the deceased when her testimony was that she corroborated by DW1 and DW3, all who confirmed that the deceased used to live with her sister DW2 in DW2’s house in Siaya. It is the 1 st Respondent who was to adduce evidence that he paid rent for the deceased in Siaya which evidence was never produced.
21. The 1 st Respondent’s neglect of the deceased was further illustrated by the below evidence which was adduced by the Appellant.
i. Failure to act as next of kin during illness – when the deceased was diagnosed with cancer, it would ordinarily have been expected that her husband, the 1 st Respondent was nowhere in Lilian’s life from the moment she was diagnosed with cancer in early 2022 until her painful demise in February 2026. Hospital records indicate ha the deceased’s mother (DW1) was the one who signed the necessary documentation as next of kin during her treatment. This reflects the absence of the 1 st Respondent in the matters concerning his wife’s medical care and welfare, and he cannot just appear after Lilian’s death to assert his rights to bury her as her husband. Where has he been during the five years Lilian battled with cancer? Was he not her husband during these years? Didn’t that status come with responsibilities? Should this court allow him to claim his right as the husband when he never stepped up to take care of his responsibilities as the husband? The trial court disregarded all this in its impugned decision.
ii. As regards the issue of being absence even at the time of death, - it was submitted that by his own admission, the 1 st Respondent was not with the deceased when she died. he did not offer any plausible explanation before the trial court for why he was not by his wife’s bedside in her final moments. Any right-thinking member of society would expect a man to be by his terminally ill wife in her final moments if he truly cares about her. upon the deceased’s death, it was not her husband who signed the required documentation at the hospital. Instead, her sister Irene (DW2) assumed the responsibility and signed for the release and processing of the body as the next of kin. This further illustrated the continued absence of 1 st Respondent in critical family responsibilities. A man who does not attend to his wife in sickness, and who was nowhere near her in her final moments on earth cannot be allowed to assert his status as the husband, complete with burial rights after the wife has died. the trial court disregarded this fact, too, in its impugned decision.
iii. As regards removal of Lilian and the children from medical insurance , it was submitted that the evidence presented by the Appellant showed that eh 1 st Respondent removed the deceased and her children from his medical insurance cover. This is despite the fact that the deceased was battling cancer and one of their children lived with sickle cell anaemia. This decision was made despite the fact that he had access to a comprehensive medical insurance policy through his employment, and despite the fact that including Lilian in his SHA cover would not have cost hm an extra shilling. Evidence provided before the trial court showed that to-date, 1 st Respondent remains without any registered dependants under his medical insurance cover, despite having children who required medical support. As a result of this conduct by the husband, the deceased was denied medical care that she would have accessed if the 1 st Respondent had included her in his insurance cover. Consequently, the 1 st Respondent contributed to Lilian’s death by denying her medical care, and he cannot now return to claim the right to bury her simply because he is her husband. You cannot contribute to someone’s death, then claim the right to bury them simply because you are the husband. Despite the clear evidence of neglect, the trial court concluded in its impugned decision that the 1 st Respondent had not abandoned his wife. How does a court conclude that a man has not abandoned his wife when the man has not included his wife in his employment medical cover, particularly when it would not cost him an extra shilling to include the wife?
iv. As regards the issue of lack of support during cancer treatment, the evidence presented by the Appellant and her witnesses showed that during the period of her illness, the deceased attempted to involve the 1 st Respondent in efforts to raise funds for her cancer treatment. She invited him to join a WhatsApp group that had been created to mobilize financial support for her medical expenses. However, the 1 st Respondent declined to participate in this initiative. How is this a man who can be accorded the right to bury his deceased wife, and how can the trial court conclude that such a man has not abandoned his wife?
v. As regards the issue of financial support for Lilian and the children, it was submitted that while the 1 st Respondent provide Mpesa statement showing that he sent some money to the it is striking that he sent funds once a year on average. How does a salaried husband send his ailing wife money only once a year? And how come the amounts transacted are eerily the same (Kshs 40,000/=)? The answer lies in the evidence represented by the Appellant which revealed the true source of these funds. The evidence sows that he money was never from his pocket yet he had an income as a salaried teacher. Evidence adduced by the Appellant showed that het 1 st Respondent used to receive educational grant funds intended for the deceased children but that he was inconsistent in forwarding these funds and in many instances did not remit the full amount to support the children’s education.
Again, WhattsApp messages submitted by the Appellant sowed clearly that the limited financial assistance the 1 st Respondent occasionally sent was sourced from church based educational grants facilitated through his sister, Marygorety, rather than from his personal income. The evidence showed clearly that the deceased would be asked to send photos of the children for onward transition to Marygorety, and that shortly after the photos were sent, the 1 st Respondent would send money to the deceased. Even then, the deceased had to plead and beg for the money, and was forced to seek the intervention of the 1 st Respondent’s brother Father Ben for the funds to be released. This raises serious concern that despite being a salaried employee of the TSC the 1 st Respondent did ot consistently utilize his own earnings to support the welfare and needs of the deceased and his family. This shows a consistent pattern of neglect and abandonment.
22. In its decision aforesaid, the trial court found that these funds showed” a family effort’ this finding cannot stand for two reasons: the obligation to support a wife rests on her husband and not the extended family. Consequently, in determining whether a husband has conducted himself towards his wife in a manner that divests him of the spousal right of burial, the court should not wander inter how the husband’s extended family treated the deceased spouse, but should maintain laser focus on how the husband treated his wife.
23. Secondly, if anything, the dispute before court was whether the 1 st Respondent as husband to the deceased was providing support to the deceased and not whether the children of the deceased were getting support. In its decision, the trial court confounded child support with spousal support. Child support is a totally different matter altogether, and donor funds meant for the education of the deceased’s children cannot be equated to spousal support of determining whether the 1 st Respondent was performing his husbandly duties towards the deceased.
24. The Appellant therefore submits that the trial court took into consideration extraneous matters in finding in favour of the 1 st Respondent, and the decision should not stand. The trial court ignored and failed to analyze clear evidence which demonstrated a consistent and sustained pattern of neglect and abandonment by the 1 st Respondent, Mr. Tom Okwach, towards his wife, Lilian. His absence during critical moments of Lilian’s illness, the removal of his family from medical insurance despite serious health needs, the failure to assume responsibility as next of kin both during her treatment and at the time of her death, and the lack of financial support for his wife collectively point to a clear abdication of spousal responsibility. Such conduct reflects a persistent failure to discharge the basic duties of care, protection and provision expected of a husband. In light of these circumstances, it was evident before the trial court that the burden of the deceased medical care, emotional and financial support was borne by the Appellant and her immediate family rather than by 1 st Respondent. As stated by the Court of Appeal, the Appellant humbly submits that this pattern of conduct divested the 1 st Respondent of the right he otherwise would have had to bury the deceased and the trial court erred in law and in fact in granting the 1 st Respondent the burial rights.
25. On the issue of whether the deceased should be buried in accordance with her wishes, reliance was placed in Oliver Bonerari Omoi & 5 Others v Joseph Basweti Orogo [2010] KEHC 1099, (KLR), the High Court held as follows regarding the wishes of the deceased:
“although I concure with the Court of Appeal decision in the said case of Apeli Vs. Buluku, [2008] 1 KLR 873 that under English Law, there is no property in a dead body, it is, however, common knowledge that Africans treat their dead relatives differently. Africans highly respect their deceased relatives and reverently handle their burials. That is why they go into great expense and take a lot of time to arrange for their decent burial. With regard to where and/or who should bury the deceased, they invariably honour the deceased’s wishes. See Charles Onyango Oduke & Another vs. Samuel Anindo Wambi [2010] eKLR (Kisumu HCCC No. 143 of 2009).
Again, in re Burial of Musa Magodo Keya (deceased) [2021] KEHC 5262 (KLR), the High Court (Achode J) held that “The place of burial of a person is closely linked to three things: the person’ wishes, the duty imposed on those closely related to the deceased during his lifetime to bury him and whether the deceased had established a home.” Emphasis added.
And in Jacinta Nduku Masai vs Leonida Mueni Mutua & 4 Others [2018] eKLR, it was held that a burial wish of the deceased is paramount and supersedes all including customary law and legal proximity. The Court stated thus:
“The main issues for consideration in aburial dispute is the wishes of the deceased if any had been expressed and the kind of relationship the contestants had with the deceased.
Those are more relevant to burial dispute than question for disposal of material assets and related claims and things. They rather than the succession regime should prevail in determining questions of burial.
In SAN VS. GW, Civil Appeal No. 1 of 2020 [2020] eKLR the Court of Appeal (Ouko P) Gatembu & Murgor, JJA.) expressed itself thus:
“….courts have also been unanimous as far as we can tell from decided cases that, both laws common and customary, have one thing in common, in so far as burial is concerned; that the wishes of the deceased, though not binding, must so far as is possible, be given effect, so long as those wishes are not contrary to custom or to the general law or policy.
See Apeli vs. BUluku [1980] eKLR and Samuel Mungai Mucheru & 3 Others vs. Ann Nyathira [2014] eKLR.
The wishes or a will on how the deceased’s remains will be disposed of upon death are not, as general rule binding because, in the first place, there is no property in a dead body and secondly, because a dead person cannot take part in the decision of his or her own burial. There must however, be compelling reasons for not heeding the expressed wishes of the deceased.
26. The import of the above decision is that the wishes of a deceased person as to her preferred place of burial are paramount and can only be disregarded if there are compelling reasons. In the present case, the trial court held that the wishes of the deceased were not clear. However, this finding was not supported by the evidence that was presented before court. the Appellant and her two witnesses all testified that the deceased expressed her wishes as to her place of burial with absolute certainty. The three testified that when it wa
[...truncated]
1. The appeal arises from the judgment of Honourable J. P. Mkala in Siaya CMCC No. E038 of 2026 dated 16/3/2026 wherein he dismissed the Appellant’s suit and handed the body of Lilian Atieno Muga to the 1 st Respondent for burial with leave for the extended family to participate in the burial. The Appellant was also ordered to surrender the burial permit, failing which the 2 nd Respondent shall proceed to issue a fresh one to facilitate the burial.
2. The Appellant was aggrieved by the aforesaid decision and duly filed her Memorandum of Appeal dated 16/3/2026, wherein she raised the following grounds of appeal:
i) That the trial court erred in law and in fact and misdirected itself on the law regarding burial disputes;
ii) That the trial court erred in law and in fact by failing to consider clear evidence of spousal neglect and cruelty by the 1 st Respondent towards the deceased;
iii) That the trial court erred in law and in fact by failing to hold that the 1 st Respondent had conducted himself towards the deceased in a manner that divested him of the spousal right to bury his wife;
iv) That the trial court erred in law and in fact by failing to hold that the 1 st Respondent, though still lawfully married to the deceased at the time of her death, was divested of the spousal right to bury his wife by virtue of his conduct towards the deceased;
v) That the trial court erred in law and in fact by determining a spousal burial dispute on the basis of child support rather than spousal support;
vi) That the trial court erred in law and in fact by failing to hold that there were discernible and clear wishes of the deceased regarding her preferred place of burial;
vii) That the trial court erred in law and in fact by failing to hold that there were no compelling reasons to disregard the clear wishes of the deceased regarding her preferred place of burial;
viii) That the trial court erred in law and in fact by failing to uphold the clear wishes of the deceased regarding her preferred place of burial;
ix) That the learned magistrate erred in fact and law in giving the 1 st Respondent custody of the deceased’s body for burial against the deceased’s wishes, and despite the 1 st Respondent’s conduct towards the deceased which divested him of the right to bury the deceased;
x) That the trial court erred in law and in fact by failing to consider documentary and oral evidence submitted by the Appellant; and
xi) That the trial court erred in law and fact when he decided the whole case against the weight of the evidence.
The Appellant therefore prayed that the appeal be allowed and the orders of the trial court issued on 16/3/2026 be set aside and or vacated and that the costs of the appeal be borne by the Respondent.
3. This being the first appellate court, its duty is well cut out namely, to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis so as to decide whether or nor to uphold the decision of the trial court. the court will have to contend with the fact that it neither saw nor hard the witnesses as they testified and must therefore provide due allowance for that. See Selle Vs. Associated Motor Boat Co. Ltd [1968] EA 123.
4. Vide the plaint dated 23/2/2026, the 1 st Respondent sued the Appellant and sought several reliefs inter alia; that a declaration that the Plaintiff (1 st Respondent) is entitled to inter the remains of his deceased wife Lilian Atieno Muga; a permanent injunction do issue restraining the 1 st Defendant (Appellant) by herself, agents, family members, relatives or any person acting under instructions from removing and disposing the body of the deceased Lilian Atieno Muga from Home Ground Funeral Home; an order directing the Plaintiff (1 st Respondent) to inter the remains of his deceased wife in their matrimonial home situate at Wich Lum, Nyaguda Sub Location Bondo Sub County and costs of the suit.
5. The 1 st Defendant (Appellant) admitted the existence of a marriage between the Plaintiff and the deceased as pleaded in the Plaint save that for the entirety of the marriage, the Plaintiff subjected the deceased to a lot of suffering which forced her to seek shelter at her sister’s place and at her parents’ home together with her children. That the Plaintiff and deceased parted ways in 2019 and have never been together until her demise. That during the deceased illness, the Plaintiff did not come to her aid or the children. That the deceased had made her wish to be buried at her parents’ home but not at her matrimonial home.
6. The case proceeded for hearing in earnest on 13/3/2026. Thomas Otieno Okwach (PW1) adopted his witness statement dated 10/3/2026 as his evidence in chief. He stated that the deceased was his legally marred wife as they had solemnized their marriage under the Marriage Act 2014. That the deceased had been suffering from cancer and that at first, she used to live with her sister at Siaya town while pursuing her KMTC studies and later at her mother’s home. That he allowed his wife to be at her mother’s place as he could not manage to be with her due to the short period of permission by his employer (TSC). That he had rented a house for his wife within Siaya town as she undertook her studies. That his employer insurance cover catered for his wife and children. That his brother and sister supported his spouse and children. That he has no dispute with his wife during her lifetime. That he seeks the courts to allow him buy the remains of his wife.
On cross examination, he stated inter alia; that he does not have evidence showing that he enrolled the deceased at KMTC and also does not have receipts hsowing tha the paid fees; that the deceased was staying with her mother at the time she wasailing; that he used to send money to the deceased for the children upkeep; that he did not have receipts showing rent payments.
7. Charles Omondi Otiato (PW2) adopted his sttemnt dated10/3/2026 as his evidence in chief. That he was not aware of any issues between the Plaintiff and the deceased. That he is also not aware of the wishes of the deceased on the issue of her burial.
8. Cyprian Okwach Obonyo (PW3) adopted his witness statement dated 10/3/2016 as his evidence in chief. He stated that he did not know if the Plaintiff had any issues with the deceased. That there was no wish made by the deceased regarding the place of her burial.
9. Leonida Anyango Muga (DW1) adopted her witness statement dated 6/3/2026 as her evidence in chief. That she had no agreement with the Plaintiff to take care of his children and his wife. That the deceased had informed her that she should not be taken back to her matrimonial home in Bondo because her in-laws had neglected her. that she decided to take back her daughter and her children because the Plaintiff had neglected them. That the deceased informed her that she should not be taken to Bondo whether dead or alive.
On cross examination, she stated inter alia; that the deceased had been married to the Plaintiff who paid her dowry and alter had a church wedding ; that the deceased did not l odge any complaint to ay Government agency over any dispute with the Plaintiff; that eh deceased’s school fees atKMTC was paid by HELB; that the deceased indicated that she should not be taken to Bondo.
10. Irene Muga (DW2) adopted her witness statement dated 6//3/2026 as her evidence in chief. She stated that the deceased never lived in the Plaintiff’s house as she used tolive with her. that thedceased used to visit her matrimonial home but later stopped after a dispute arose.
On cross examination, she stated inter alia; that she is the one who took the body to the mortuary; that she is the one who gave instructions to the mortuary attendant not to allow any unauthorized person to view the body; that she is the one who lived with the deceased; that the Plaintiff’s marriage with the deceased broke down in 2019; that the Plaintiff did not support her sister ; that she is aware that the Plaintiff use to send money to the deceased; that the Plaintiff never contributed money towards the deceased’s medical bill.
11. George Oluoch Muga (DW3) adopted his statement dated6/3/2026 as his evidence in chief. On cross examination, he stated inter alia; that the deceased was lawfully married to the deceased; that there was no written will made by the deceased but had spoken orally; that one Father Ben had been paying fees for one child but that there are no receipts to that effect; that the Plaintiff has not been in the picture since members of the church had been sponsoring the kids; that he had been with the deceased for three years after she came home.
12. The 2 nd Defendant called Catherine Mulama (DW4) who adopted her statement dated 2/3/2026 as her evidence in chief. That the body of the deceased was brought to them on 14/2/2026 by Irene Muga (DW2) who directed that nobody would be allowed to view the body without her consent. That the mortuary fee at the time stood at Kshs 13,450/.
13. After closure of the respective cases, the trial court later considered the matter and arrived at the impugned judgment which precipitated the appeal herein.
14. The appeal was canvassed by way of written submissions. Both parties duly complied.
15. Vide submissions dated 7/4/2026, the Appellant’s learned counsel started off by setting out the law governing burial disputes in Kenya, before turning to whether the trial court correctly applied the facts to the law in reaching the impugned decision.
The law on the right to Burial in Kenya
While a man or woman would have the primary right to bury their deceased spouse, courts have taken a very dim view of people who abandon their spouses for years, and only turn up to claim burial rights once the spouse is dead.
In SAN Vs. GW, Civil Appeal No. 1 of 2020 [2020] eKLR, the Court of Appeal (Ouko P) Gatembu & Murgor, JJ.A) laid down the law on burial disputes in a similar case thus:
“…. courts have also been unanimous as far as we can tell from decided cases that, both laws, common and customary, have one thin in common, in so far as burial is concerned; that the wishes of the deceased, though not binding, must so far as is possible, be given effect, so long as those wishes are not contrary to custom or to the general law or policy.
See Apeli vs. Buluku (1980) Eklr and Samuel Mungai Mucheru & 3 Others vs. Ann Nyathira [2014] eKLR.
The wishes or will on how the deceased’s remains will be disposed of upon death are not, as a general rule binding because in the first place, there is no property in a dead body and secondly, because a dead person cannot take part in the decision of his or her own burial. There must however be compelling reasons for not heeding the expressed wishes of the deceased.
As was observed by the court in SM case, it is only through legislation that matters such as the deceased’s wishes will be given a permanent place in law.
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. Regarding this last limp, the Court of Appeal in Samuel Wambi Vs. COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR expressed the following view:
“…. a person’s conduct to a deceased person can extinguish the right o 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 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.”
16. The Appellant also relied on the decision of the High Court in Nakuru (Maraga J – as he then was) in Oliver Bonerari Omoi & 5 Others v. Joseph Baweti Orogo (2010) eKLR, a dispute over burial rights of Mary Kemunto Basweti, a deceased woman from Kisii. The Respondent Joseph Bosweti Orogo, claimed he married the deceased under Kisii Customary Law in 1960’s by paying dowry (15 cows and 8 goats) and sired 8-9 children with her. the trial court found in his favour, granting the right to bury her in Kisii. However, the appellate court reversed this, holding that the deceased expressed wish to be buried in Njoro (her acquired home) and her 30 – year estrangement from the Respondent override his customary law right. In reaching its determination, the Court was guided by the deceased’s final wishes and the nature of her relationship with her estranged husband both of which extinguished his reight as a widower to bury her.
Also, the Appellant relies on the decision of the Court of Appeal in Edwin Otieno Ombajo Vs. Martin Odera Okumu [1996] eKLR, where it was held that the husband’s right to bury his deceased wife’s body may be superseded by the deceased’s wishes if the husband behavior renders him underserving to bury the remains of his wife.
17. In reaching the conclusion, and taking away the husband’s right to burry his wife, the Court of Appeal held as follows:
“The facts of this matter are clear that the Respondent appears to have lost all interest in the deceased and their two children of the marriage as soon as the deceased left the matrimonial home. Although the Respondent stated tin the superior court that the deceased used to visit him at his chambers, the surrounding circumstances suggest otherwise. If the deceased indeed, used to visit the Respondent as he alleged, and he used to give her some money, it is not clear why the Respondent was not regularly remitting to her the maintenance money. Nor is it clear to us whey he was not meeting her medical bills and those of the children.
Evidence was adduced in the superior court to the effect that the Respondent was so hostile to the deceased and the children of their marriage that sometime in 1992, when the deceased and the children of their marriage that sometimes in 1992, when the deceased wrote to him to request for money for the medical expenses of the children, he refused to pay arguing that the children were not sick when she left the matrimonial home with them. That is how callous the Respondent was to the plight of the deceased and the children.
It is also, noteworthy that no specific efforts were made by the Respondent to urge the deceased to resume cohabitation.”
18. On the issue of whether the 1 st Respondent has the right to bury his deceased wife in light of his conduct towards her, it was submitted that while it was never denied that the 1 st Respondent was the deceased’s husband, the Appellant and her witnesses submitted uncontroverted evidence demonstrating neglect and abandonment of the deceased including in her final moments when she was facing death from cancer. As was held in the above cases, such conduct can extinguish a husband right to bury his wife.
19. Evidence presented on behalf of the Appellant showed that he deceased took off from the 1 st Respondent in 2019 following abuse by the 1 st Respondent, and went to live with one of her sisters in Siaya. While there, she was diagnosed with cancer. She later went to live with her mother, the Appellant in her home in Komenya. She took her kids to live with her after the Appellant neglected them too. The neglect was so bad that one of the children suffered a stroke due to poor medication for sickle cell disease. At no point did Lilian return to the Appellant. more importantly, at no point did the Appellant visit her to inquire into her health and welfare, or to support her, including after her cancer diagnosis and in her terminal months.
20. In its impugned decision, the trial court did not consider this crucial evidence of neglect and abandonment that proved that the 1 st Respondent never visited the deceased for seven years. That the Appellant also adduced evidence to show that the 1 st Respondent did not support the deceased to enroll for her course at KMTC as he alleged in his plaint. Contrary to his allegations, that he provided rent and fees, the Appellant provided evidence showing that the deceased lived with her sister (DW2) in Siaya, and that her fees were paid partly by HELB and partly by the deceased and her siblings. In its impugned decision, the trial court held that Both PW1 and DW2 were unable to prove who between the two paid rent for and on behalf of the deceased. In reaching this conclusion, the trial court disregarded clear evidence adduced by DW2 who testified that she accommodated the deceased in her house in Siaya. The trial court erred in fact and in law by requiring DW2 to provide evidence that she paid rent for the deceased when her testimony was that she corroborated by DW1 and DW3, all who confirmed that the deceased used to live with her sister DW2 in DW2’s house in Siaya. It is the 1 st Respondent who was to adduce evidence that he paid rent for the deceased in Siaya which evidence was never produced.
21. The 1 st Respondent’s neglect of the deceased was further illustrated by the below evidence which was adduced by the Appellant.
i. Failure to act as next of kin during illness – when the deceased was diagnosed with cancer, it would ordinarily have been expected that her husband, the 1 st Respondent was nowhere in Lilian’s life from the moment she was diagnosed with cancer in early 2022 until her painful demise in February 2026. Hospital records indicate ha the deceased’s mother (DW1) was the one who signed the necessary documentation as next of kin during her treatment. This reflects the absence of the 1 st Respondent in the matters concerning his wife’s medical care and welfare, and he cannot just appear after Lilian’s death to assert his rights to bury her as her husband. Where has he been during the five years Lilian battled with cancer? Was he not her husband during these years? Didn’t that status come with responsibilities? Should this court allow him to claim his right as the husband when he never stepped up to take care of his responsibilities as the husband? The trial court disregarded all this in its impugned decision.
ii. As regards the issue of being absence even at the time of death, - it was submitted that by his own admission, the 1 st Respondent was not with the deceased when she died. he did not offer any plausible explanation before the trial court for why he was not by his wife’s bedside in her final moments. Any right-thinking member of society would expect a man to be by his terminally ill wife in her final moments if he truly cares about her. upon the deceased’s death, it was not her husband who signed the required documentation at the hospital. Instead, her sister Irene (DW2) assumed the responsibility and signed for the release and processing of the body as the next of kin. This further illustrated the continued absence of 1 st Respondent in critical family responsibilities. A man who does not attend to his wife in sickness, and who was nowhere near her in her final moments on earth cannot be allowed to assert his status as the husband, complete with burial rights after the wife has died. the trial court disregarded this fact, too, in its impugned decision.
iii. As regards removal of Lilian and the children from medical insurance , it was submitted that the evidence presented by the Appellant showed that eh 1 st Respondent removed the deceased and her children from his medical insurance cover. This is despite the fact that the deceased was battling cancer and one of their children lived with sickle cell anaemia. This decision was made despite the fact that he had access to a comprehensive medical insurance policy through his employment, and despite the fact that including Lilian in his SHA cover would not have cost hm an extra shilling. Evidence provided before the trial court showed that to-date, 1 st Respondent remains without any registered dependants under his medical insurance cover, despite having children who required medical support. As a result of this conduct by the husband, the deceased was denied medical care that she would have accessed if the 1 st Respondent had included her in his insurance cover. Consequently, the 1 st Respondent contributed to Lilian’s death by denying her medical care, and he cannot now return to claim the right to bury her simply because he is her husband. You cannot contribute to someone’s death, then claim the right to bury them simply because you are the husband. Despite the clear evidence of neglect, the trial court concluded in its impugned decision that the 1 st Respondent had not abandoned his wife. How does a court conclude that a man has not abandoned his wife when the man has not included his wife in his employment medical cover, particularly when it would not cost him an extra shilling to include the wife?
iv. As regards the issue of lack of support during cancer treatment, the evidence presented by the Appellant and her witnesses showed that during the period of her illness, the deceased attempted to involve the 1 st Respondent in efforts to raise funds for her cancer treatment. She invited him to join a WhatsApp group that had been created to mobilize financial support for her medical expenses. However, the 1 st Respondent declined to participate in this initiative. How is this a man who can be accorded the right to bury his deceased wife, and how can the trial court conclude that such a man has not abandoned his wife?
v. As regards the issue of financial support for Lilian and the children, it was submitted that while the 1 st Respondent provide Mpesa statement showing that he sent some money to the it is striking that he sent funds once a year on average. How does a salaried husband send his ailing wife money only once a year? And how come the amounts transacted are eerily the same (Kshs 40,000/=)? The answer lies in the evidence represented by the Appellant which revealed the true source of these funds. The evidence sows that he money was never from his pocket yet he had an income as a salaried teacher. Evidence adduced by the Appellant showed that het 1 st Respondent used to receive educational grant funds intended for the deceased children but that he was inconsistent in forwarding these funds and in many instances did not remit the full amount to support the children’s education.
Again, WhattsApp messages submitted by the Appellant sowed clearly that the limited financial assistance the 1 st Respondent occasionally sent was sourced from church based educational grants facilitated through his sister, Marygorety, rather than from his personal income. The evidence showed clearly that the deceased would be asked to send photos of the children for onward transition to Marygorety, and that shortly after the photos were sent, the 1 st Respondent would send money to the deceased. Even then, the deceased had to plead and beg for the money, and was forced to seek the intervention of the 1 st Respondent’s brother Father Ben for the funds to be released. This raises serious concern that despite being a salaried employee of the TSC the 1 st Respondent did ot consistently utilize his own earnings to support the welfare and needs of the deceased and his family. This shows a consistent pattern of neglect and abandonment.
22. In its decision aforesaid, the trial court found that these funds showed” a family effort’ this finding cannot stand for two reasons: the obligation to support a wife rests on her husband and not the extended family. Consequently, in determining whether a husband has conducted himself towards his wife in a manner that divests him of the spousal right of burial, the court should not wander inter how the husband’s extended family treated the deceased spouse, but should maintain laser focus on how the husband treated his wife.
23. Secondly, if anything, the dispute before court was whether the 1 st Respondent as husband to the deceased was providing support to the deceased and not whether the children of the deceased were getting support. In its decision, the trial court confounded child support with spousal support. Child support is a totally different matter altogether, and donor funds meant for the education of the deceased’s children cannot be equated to spousal support of determining whether the 1 st Respondent was performing his husbandly duties towards the deceased.
24. The Appellant therefore submits that the trial court took into consideration extraneous matters in finding in favour of the 1 st Respondent, and the decision should not stand. The trial court ignored and failed to analyze clear evidence which demonstrated a consistent and sustained pattern of neglect and abandonment by the 1 st Respondent, Mr. Tom Okwach, towards his wife, Lilian. His absence during critical moments of Lilian’s illness, the removal of his family from medical insurance despite serious health needs, the failure to assume responsibility as next of kin both during her treatment and at the time of her death, and the lack of financial support for his wife collectively point to a clear abdication of spousal responsibility. Such conduct reflects a persistent failure to discharge the basic duties of care, protection and provision expected of a husband. In light of these circumstances, it was evident before the trial court that the burden of the deceased medical care, emotional and financial support was borne by the Appellant and her immediate family rather than by 1 st Respondent. As stated by the Court of Appeal, the Appellant humbly submits that this pattern of conduct divested the 1 st Respondent of the right he otherwise would have had to bury the deceased and the trial court erred in law and in fact in granting the 1 st Respondent the burial rights.
25. On the issue of whether the deceased should be buried in accordance with her wishes, reliance was placed in Oliver Bonerari Omoi & 5 Others v Joseph Basweti Orogo [2010] KEHC 1099, (KLR), the High Court held as follows regarding the wishes of the deceased:
“although I concure with the Court of Appeal decision in the said case of Apeli Vs. Buluku, [2008] 1 KLR 873 that under English Law, there is no property in a dead body, it is, however, common knowledge that Africans treat their dead relatives differently. Africans highly respect their deceased relatives and reverently handle their burials. That is why they go into great expense and take a lot of time to arrange for their decent burial. With regard to where and/or who should bury the deceased, they invariably honour the deceased’s wishes. See Charles Onyango Oduke & Another vs. Samuel Anindo Wambi [2010] eKLR (Kisumu HCCC No. 143 of 2009).
Again, in re Burial of Musa Magodo Keya (deceased) [2021] KEHC 5262 (KLR), the High Court (Achode J) held that “The place of burial of a person is closely linked to three things: the person’ wishes, the duty imposed on those closely related to the deceased during his lifetime to bury him and whether the deceased had established a home.” Emphasis added.
And in Jacinta Nduku Masai vs Leonida Mueni Mutua & 4 Others [2018] eKLR, it was held that a burial wish of the deceased is paramount and supersedes all including customary law and legal proximity. The Court stated thus:
“The main issues for consideration in aburial dispute is the wishes of the deceased if any had been expressed and the kind of relationship the contestants had with the deceased.
Those are more relevant to burial dispute than question for disposal of material assets and related claims and things. They rather than the succession regime should prevail in determining questions of burial.
In SAN VS. GW, Civil Appeal No. 1 of 2020 [2020] eKLR the Court of Appeal (Ouko P) Gatembu & Murgor, JJA.) expressed itself thus:
“….courts have also been unanimous as far as we can tell from decided cases that, both laws common and customary, have one thing in common, in so far as burial is concerned; that the wishes of the deceased, though not binding, must so far as is possible, be given effect, so long as those wishes are not contrary to custom or to the general law or policy.
See Apeli vs. BUluku [1980] eKLR and Samuel Mungai Mucheru & 3 Others vs. Ann Nyathira [2014] eKLR.
The wishes or a will on how the deceased’s remains will be disposed of upon death are not, as general rule binding because, in the first place, there is no property in a dead body and secondly, because a dead person cannot take part in the decision of his or her own burial. There must however, be compelling reasons for not heeding the expressed wishes of the deceased.
26. The import of the above decision is that the wishes of a deceased person as to her preferred place of burial are paramount and can only be disregarded if there are compelling reasons. In the present case, the trial court held that the wishes of the deceased were not clear. However, this finding was not supported by the evidence that was presented before court. the Appellant and her two witnesses all testified that the deceased expressed her wishes as to her place of burial with absolute certainty. The three testified that when it wa
[...truncated]