1. The appellants were defendants in Rongo Principal Magistrate’s PMCC No. E011 of 2025. The respondent requested the court to order the exhumation of Dan Ayoo Obura’s body so it could be reburied at his home in Kochieng West Location, Kano, Kisumu County.
2. Julius Obura Njer, the respondent, claimed that the deceased was his son. When he became ill, his wife took him to the 2nd appellant’s premises for prayer. Unfortunately, he died before receiving any medication. The learned trial magistrate granted the orders.
3. The appellants were dissatisfied with the judgment and filed this appeal through Kerario Marwa & Company Advocates. They raised the following grounds of appeal:
a) The learned trial magistrate erred in both law and fact when he failed to consider, evaluate and balance the pleadings, evidence and submissions, thereby reaching a wrong conclusion.
b) The learned trial magistrate erred in both law and fact when he failed to consider that the 1st appellant, who was the wife of the deceased, had priority to inter the remains of her deceased husband.
c) The learned trial magistrate erred in both law and fact when he failed to appreciate the doctrine of legal proximity of the deceased to the 1st appellant.
d) The learned trial magistrate was biased against the appellant.
4. The respondent was represented by Anyango Owino & Associates Advocates. He urged the court to dismiss the appeal for want of merit.
5. As the first appellate court, I recognise my responsibility to thoroughly examine all the available evidence, given that I did not have the opportunity to observe the witnesses during their testimony. The Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123 case establishes that the first appellate court must review and assess the evidence presented in the trial court and draw its conclusions accordingly.
6. When the deceased died, it was expected that his close relatives would be informed to agree on the burial location. The respondent stated that he was not notified. Although the 1st appellant claimed she did so, this raised suspicion. As a church, the 2nd appellant should have taken the necessary steps and informed the close relatives to reach a consensus.
7. Everlyne Omamo's (DW2) evidence showed that the deceased severed connections with his family, who had abandoned him.
8. The evidence given by the appellants seems doubtful and prompts questions about why a church organization would insist on burying one of its members. If the deceased had a church role, that explanation would be reasonable. Overall, the evidence tilts the balance in favour of the respondent.
9. After reviewing the previous analysis of the evidence, I see no grounds to overturn the decision made by the learned trial magistrate. Consequently, the appeal is denied.
10. Each party will bear its costs.
Delivered and signed at Migori, this 24th day of February 2026
2. Julius Obura Njer, the respondent, claimed that the deceased was his son. When he became ill, his wife took him to the 2nd appellant’s premises for prayer. Unfortunately, he died before receiving any medication. The learned trial magistrate granted the orders.
3. The appellants were dissatisfied with the judgment and filed this appeal through Kerario Marwa & Company Advocates. They raised the following grounds of appeal:
a) The learned trial magistrate erred in both law and fact when he failed to consider, evaluate and balance the pleadings, evidence and submissions, thereby reaching a wrong conclusion.
b) The learned trial magistrate erred in both law and fact when he failed to consider that the 1st appellant, who was the wife of the deceased, had priority to inter the remains of her deceased husband.
c) The learned trial magistrate erred in both law and fact when he failed to appreciate the doctrine of legal proximity of the deceased to the 1st appellant.
d) The learned trial magistrate was biased against the appellant.
4. The respondent was represented by Anyango Owino & Associates Advocates. He urged the court to dismiss the appeal for want of merit.
5. As the first appellate court, I recognise my responsibility to thoroughly examine all the available evidence, given that I did not have the opportunity to observe the witnesses during their testimony. The Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123 case establishes that the first appellate court must review and assess the evidence presented in the trial court and draw its conclusions accordingly.
6. When the deceased died, it was expected that his close relatives would be informed to agree on the burial location. The respondent stated that he was not notified. Although the 1st appellant claimed she did so, this raised suspicion. As a church, the 2nd appellant should have taken the necessary steps and informed the close relatives to reach a consensus.
7. Everlyne Omamo's (DW2) evidence showed that the deceased severed connections with his family, who had abandoned him.
8. The evidence given by the appellants seems doubtful and prompts questions about why a church organization would insist on burying one of its members. If the deceased had a church role, that explanation would be reasonable. Overall, the evidence tilts the balance in favour of the respondent.
9. After reviewing the previous analysis of the evidence, I see no grounds to overturn the decision made by the learned trial magistrate. Consequently, the appeal is denied.
10. Each party will bear its costs.
Delivered and signed at Migori, this 24th day of February 2026