'
INTRODUCTION
The appeal arises out of a decision by the Learned Honorable Magistrate F.A OBINA PM delivered on the 28 th December 2022.
The matter in issue was a burial dispute pitting the appellant against the respondents.
The respondent had by way of Nyando Civil Suit No. 2 of 2021 which was later transferred to Kisumu Chief Magistrate’s Court and assigned case Number 1 of 2022 sought the following orders:-
a) A permanent injunction restraining the defendants either by themselves or through their agents, employees, servants,
relatives and or any other person deriving authority either
directly or indirectly from removing the body of Fabianus Odongo Ayago from Ahero Sub county hospital mortuary
b) That the plaintiffs and family members be allowed to take the body of Fabianus Odongo Ayago for a decent burial
The learned Honorable Magistrate after hearing the matter made the following orders:
a) The management of Ahero sub county hospital mortuary or any
other hospital mortuary where the body of the deceased,
FABIANUS ODONGO AYAGO, is being kept, are hereby ordered
to release the body of the deceased, FABIANUS ODONGO
AYAGO to the 2nd plaintiff, MAGDALINA MAINA OJANGO, the
sister in law to the deceased, for burial arrangements and
eventual burial by the deceased''s kins men and clan.
b) The 2nd plaintiff is at liberty to have the body of the deceased laid
to rest on his own land or where his parents and/or brothers were
laid to rest.
c) Law enforcement agencies are at liberty to pursue and investigate any allegations against any body mentioned
adversely
d) The 1st plaintiff and the defendants and any other person is at
liberty to attend the burial.
e) The plaintiffs shall pay all the mortuary charges, if any.
f) There shall be no order as to costs. Each party to bear their own costs.
According to the appellant the decision by the learned Honourable was wrong in law and has appealed to this court on the following grounds:-
THAT the trial Magistrate erred in law and in fact in finding that there existed a kinship tie between the deceased and the Respondents despite overwhelming evidence to the contrary, thus conferred them burial rights over the deceased,
THAT despite unequivocal pleadings by the 1st plaintiff/ Respondent while originating this suit, that he was uncle and cousin to the deceased all at the same, the learned trial magistrate, by purporting to amend the pleadings by imposing his opinions in an attempted clarification not borne of pleadings, fell · into both error of fact and the law in creating a none existent relationship.
THAT the learned trial magistrate fell into error on point law by introducing hitherto unpleaded issues, and more, offering explanations which in effect amended the suit without leave of court and devoid of prompting by any party, oblivious of the fact that this germane issue of KINSHIP TIES was central to the determination of the matter.
THAT the trial Magistrate erred in law in finding that an undated verifying affidavit as served is not a fatal defect to the pleadings of the plaintiff now respondent, and instead amended the same as if he was a litigant and devoid of leave to do the same.
THAT the trial magistrate erred in law and in fact in finding that the plaintiffs were entitled to bury the deceased by culture while disregarding proven and the only existing blood relations between the deceased and the 1st Appellant, which culture was unproven and could not be pleaded by strangers to the deceased.
THAT the trial Magistrate erred in law and in fact in failing to analyze the oral and documentary evidence in detail more so those on character of the respondents, and in particular the protracted history of litigation between the deceased and the 1st respondent certainly against the wishes of the deceased.
THAT the trial Magistrate erred in law and fact in disregarding the discernible wishes of the deceased as can be gleaned from history of criminal charges and complaints caused by the deceased against the Respondents, more glaring a threat to the life of the deceased during the period leading to his death.
THAT the trial Magistrate erred in law and fact in relying on extrinsic factors, while disregarding incriminating evidence of fraud against the deceased by the 1st respondent and his agents including the 2nd respondent, and in which he sued and was sued by the deceased during his life time and years leading to his death, a clear demonstration of the wishes of the deceased that he never wanted anything to do with his adversaries the respondents herein.
THAT the learned trial magistrate erred in law and in fact in making an alarming finding that the Appellant is the one who destroyed an imaginary and none existent house of the deceased, when it is uncontested that the deceased never had a house nor a home other than at the Appellants since his retirement..
THAT trial magistrate erred in law and in fact, in disregarding admission by the 1st respondent that he had already transferred the properties of the deceased during the pendency of the case, and worse still against an existing will in favour of the 1st Appellant.
THAT the learned trial magistrate erred in law and in fact in ignoring the evidence of JOSHUA NYAMORI ADVOCATE who had interacted with the deceased during his life time in preparing a power of attorney in favour of the Appellant prior to the deceased death, and from which his wishes before death are discernible.
THAT the learned trial magistrate erred in both law and fact in ignoring the hostilities spreading in protracted and costly litigation between the deceased and the 1st respondent and which were pivotal in tracing the wishes of the deceased.
THAT the learned trial magistrate erred in law and in fact in a sectarian analysis of evidence and the law applicable more so the degrees of consanguinity thus elevated unproven culture by dubious witnesses against unequivocal and proven blood relations hence an illegal burial.
THAT the learned trial magistrate erred in law and in fact by misdirecting his mind to property disputes, yet that is in effect what the court has actually set pace for determination of by ranking the respondents over the Appellants in consanguinity.
THAT the learned trial magistrate erred in law and in fact, in conferring a sister in law status to the 2nd Respondent, when the 1st respondent her own son, never proved whether he was a nephew or an uncle to the deceased and how such would be biologically practical.
THAT the learned trial magistrate erred in law and in fact in disregarding the adversarial nature of litigation and worse descended in the arena of trial, while denying the Appellant a chance to respond to his own unpleaded opinion, worse to pleadings filed by two firms of Advocates without amendments and for two years.
THAT the learned trial magistrate erred in law and in fact in ignoring the record of proceedings, more so those of his predecessors and a bloated history of non compliance with court orders by the plaintiffs now respondents as to filing of submissions and service thus tilting the contest in favour of the respondents despite their fatally flowed pleadings.
The issues that arise in this appeal are:-
Who was the rightful person to bury the deceased?
Whether an order of exhumation should be made to allow the deceased’s body to be exhumed for purposes of being reburied by the appellant.
Who gets the costs of the appeal?
On the 2 nd December 2024 when the matter came up before this court counsel for the appellant was absent but MR. ABANDE appeared for the respondents and took the date for judgment on 6/2/2025 however the same was not ready on that date.
APPELLANT’S CASE
The parties in this appeal filed written submissions as per the directions issued by the court.
The appellants contend that they were the rightful persons who should have buried the deceased.
Their argument is that the deceased during his life time did not enjoy a cordial relationship with the respondents thus the respondents had no right in burying the deceased.
The appellants further argued that the deceased had number of criminal charges and complaints against the respondents and that there was indeed a threat to the deceased’s life by the respondents.
The appellants further contended that the issue of purported kinship ties between the deceased and the respondent was an invention by the magistrate and was not backed by the evidence adduced by the appellants.
The only blood relative of the deceased as for per the appellants was only the 1 st appellant.
According to the appellants the protracted litigation between the deceased and the 1 st respondent certainly want against the wishes of the deceased.
The deceased died on the 5 th January 2020 while residing with the appellants maintain that naturally they ought to have been the rightful persons to bury the deceased.
Further, the appellant submitted that the deceased wrote power of Attorney allowing the 1 st appellant to pursue his cases against the 1 st respondent who allegedly had fraudulently appropriated the deceased brothers’ land.
The appellants disputed the kinship of the 1 st respondent with the deceased. The appellants contended that the 1 st respondent was not the deceased’s nephew.
The appellants maintained that PW1 could not have been the deceased’s uncle.
The appellants further contended that the learned Honorable magistrate’s finding that an undated verifying affidavit is not a fatal defect was an unmitigated error on the part of the court.
In conclusion, the appellants argued that had the appellants argued that had the trial court closely analyzed the evidence adduce by them, the court would not have granted the orders it did to the respondents. The appellants urged the court to allow the appeal.
RESPONDENT’S CASE
The respondents are opposed to the appeal and in their submissions, they contend that the persons here are Luo by tribe. According to them they are customary Law since there is no law governing burial disputes in Kenya.
The respondents contend that personal law of the individual would govern his or her burial.
In support of that argument the respondents cited Section 3 (2) of the Judicature Act which provides:-
"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."
The respondents further submitted on the duty to give effect to African customary law and cited the case of Edwin Otieno Ombajo Vs. Martin Odero Okumu Civil Appeal No. 209 of 1996 (1996) eKLR where the court held:
‘’ If African Customary Law is not caught up by the qualifications under
S.3 (2), above, then it must be given effect by the courts and must be applied in deciding cases before it but according to “substantial justice.” We are, also, of the view that the manner in which S. 3(2), of the Judicature Act, is worded gives flexibility to the administration of justice, as courts are thus empowered to weigh all the circumstances of a case before coming to a decision, without whittling down the place of customary law in the administration of justice in Kenya. So the discretion the courts have is not whether to apply customary law
or not, but the discretion is to consider whether to enforce a right, which under the law vests in a particular person, or not."
The respondents emphasize that whenever the court is called upon to resolve a dispute then the primary consideration should be to grant substantive justice by weighing all the circumstances of the case.
The respondent submitted that PW1 testified that the deceased was his uncle by virtue of the fact that the deceased and his father were half -brothers being sons of the same father.
According to the respondents it was the 1 st respondent who buried all the other brothers of the deceased.
The respondents argued that the totality of the evidence showed that they were the rightful persons to bury the deceased and a such the learned Honorable magistrate was correct in his decision.
The respondents also argued that the Luo customary law on burials had not been found to be repugnant to justice and morality thus the application on the same by the Lower court was proper.
In the respondents view the decision by the trial court was just in that the court allowed all the parties to participate in the burial of the deceased.
The respondent submitted that following the order the deceased was laid next to his partners and brothers.
The respondent further argued that the 2 nd respondent proved his relationship with the deceased thus Luo customary law was followed to the latter and the decision of the Lower court should be allowed.
ANALYSIS AND DETERMINATION
The duty of this court as a first appellate court is well settled in the case of Selle & Another Vs. Associated Motor Boat Co. Ltd [1968] E 123 and Peters Vs. Sunday Potst Ltd [1958] EA 424 .
The court’s duty is to analyze the evidence tendered before the lower court and from the evidence draw its own conclusions whilst remaining alive to the fact that unlike the lower court this court did not have the benefit of hearing or seeing the witnesses.
The deceased in this matter died way back on 5 th January 2021 over 4 years back.
The appellants have urged this court to intervene in this matter and review the decision of the lower court made on 28 th December 2022 allowing the respondents to take the body from the mortuary where it had stayed for about 2 years for burial.
The appellants prayer is that the decision be reversed and exhumation be ordered to allow them remove whatever is left of the deceased’s body for burial by themselves.
The crux of the appellants argument is that the respondents were not blood relatives of the deceased and that during the deceased’s lifetime, they had a very protracted litigation on land and also some criminal complaints.
It is important for the court to state here that to order an exhumation the party seeking the order must persuade the court that there is indeed a very compelling reason for exhumation such as a post mortem is required for purposes of investigation of the cause of death of the deceased or that the deceased’s remains are at the place they lie by mistake thus the need to move the body to another place for burial.
It could as well be a good ground for exhumation if it turns out that the body sought to be exhumed was actually not the body of the deceased who was intended to be buried at the site identified but due to mistake in identification at the mortuary the wrong body was taken and buried under the honest and mistaken believe that it was the body of the deceased named in the application.
The court has made this observation because the exhumation of a human remains is a very traumatic exercise which must never be approached casually. The family members of a deceased person must be spared the trauma unless there are very good reasons to exhume the body.
The Penal Code under Section 137 provides:
“ Whoever unlawfully hinders the burial of the dead body of any person , or without lawful authority in that behalf disinters, dissects or harms the dead body of any person or being under duty to cause dead body of any person to be buried fails to perform that duty, is guilty of a misdemeanor. ” The provision underscores the serious of the duty of persons charged with the responsibility of burying others to do so. The law appreciates that there must be some degree of decency in handling the remains of a deceased person.
It also criminalizes disinterring of bodies once buried without lawful authority.
The question that arises therefore is, what is the test to be met by a person who seeks authority to exhume a body.
As this court has stated above an applicant who seeks such an order must establish a compelling case for disinterring.
The uncontested fact in this appeal is that all parties were allowed by the lower court to participate in the burial and the appellants have not given the slightest indication that they were barred from participating in the burial or in any way discriminated against throughout the process. The burial proceeded without a hitch thus the court orders must have been respected.
The appellants claim to have had a right to bury the deceased just like the respondents do. The law of equity decrees that where two equities are equal the first in time prevails. The respondents interred the body thus they were the first to exercise their right to bury.
The respondents have submitted that the deceased was buried next to his parents and brothers. That fact is not contested.
The appellants have not stated where they intend to take the deceased body for burial should this court accede to their request. The natural presumption is that, in keeping with common practice among Kenyan Communities they would have laid the deceased body at the place he lies to date or any other place that is recognized for burial by the family including the place where the deceased was rested.
The question that this court poses is, what would be the legal basis of ordering an exhumation of the deceased’s body in the face of the facts of this case? This court finds absolutely none.
The burial site of the deceased is not in contention and there is no purpose that has been stated for disinterring the body thus in this courts view, the appellants are purely on an egoistic journey by mounting this suit.
The respondents have submitted that they performed the burial rites in line with the Luo customary law which they have urged this court to uphold.
The Judicature Act Section 3 (2) recognizes the place of customary Law in Kenya as a source of Law and so is Article 159 of the constitution. Customary Law is to be recognized, appreciated and applied in the resolution of disputes in this country subject only to the repugnancy clause.
The appellants have not taken issue with the application of Luo Customary law in this matter and considering that, that was the personal Law of the deceased the Lower court was right in recognizing and applying Luo Customary Law in the matter.
From the analysis of the evidence on record the respondents just like the appellants had the rights to bury the deceased and the respondents to whom the body of the deceased was committed for burial were equally entitled to bury the deceased.
In the end I find that the appeal has no merit and the same is hereby dismissed with no orders as to costs.
It is important before I pen off to state that it is the view of this court that the time has come for us as a people to revisit our practices and approach to certain issues of personal law. Burial disputes should by now be a thing of the past. There is no property in a dead body and we must all appreciate that to avoid unnecessary wrangles over burial rites which end up splitting families and sowing seeds of hatred.
The world has moved to embrace practices that minimize cost and emotional trauma that comes with some of these disputes. The African man must accept that there is no property in a dead body and all that a deceased person expects in death is a decent burial that reflects his wishes in life and the least expensive affair that his social standing in life would permit.
The tussle over who buries the deceased is an unnecessary struggle that only serves to stress the immediate family members.
The place of African customary law must be respected as Kenya moves towards the robust implementation of alternative dispute resolution mechanisms in line with Article 159 of the Constitution.
It is so ordered.
'
INTRODUCTION
The appeal arises out of a decision by the Learned Honorable Magistrate F.A OBINA PM delivered on the 28 th December 2022.
The matter in issue was a burial dispute pitting the appellant against the respondents.
The respondent had by way of Nyando Civil Suit No. 2 of 2021 which was later transferred to Kisumu Chief Magistrate’s Court and assigned case Number 1 of 2022 sought the following orders:-
a) A permanent injunction restraining the defendants either by themselves or through their agents, employees, servants,
relatives and or any other person deriving authority either
directly or indirectly from removing the body of Fabianus Odongo Ayago from Ahero Sub county hospital mortuary
b) That the plaintiffs and family members be allowed to take the body of Fabianus Odongo Ayago for a decent burial
The learned Honorable Magistrate after hearing the matter made the following orders:
a) The management of Ahero sub county hospital mortuary or any
other hospital mortuary where the body of the deceased,
FABIANUS ODONGO AYAGO, is being kept, are hereby ordered
to release the body of the deceased, FABIANUS ODONGO
AYAGO to the 2nd plaintiff, MAGDALINA MAINA OJANGO, the
sister in law to the deceased, for burial arrangements and
eventual burial by the deceased''s kins men and clan.
b) The 2nd plaintiff is at liberty to have the body of the deceased laid
to rest on his own land or where his parents and/or brothers were
laid to rest.
c) Law enforcement agencies are at liberty to pursue and investigate any allegations against any body mentioned
adversely
d) The 1st plaintiff and the defendants and any other person is at
liberty to attend the burial.
e) The plaintiffs shall pay all the mortuary charges, if any.
f) There shall be no order as to costs. Each party to bear their own costs.
According to the appellant the decision by the learned Honourable was wrong in law and has appealed to this court on the following grounds:-
THAT the trial Magistrate erred in law and in fact in finding that there existed a kinship tie between the deceased and the Respondents despite overwhelming evidence to the contrary, thus conferred them burial rights over the deceased,
THAT despite unequivocal pleadings by the 1st plaintiff/ Respondent while originating this suit, that he was uncle and cousin to the deceased all at the same, the learned trial magistrate, by purporting to amend the pleadings by imposing his opinions in an attempted clarification not borne of pleadings, fell · into both error of fact and the law in creating a none existent relationship.
THAT the learned trial magistrate fell into error on point law by introducing hitherto unpleaded issues, and more, offering explanations which in effect amended the suit without leave of court and devoid of prompting by any party, oblivious of the fact that this germane issue of KINSHIP TIES was central to the determination of the matter.
THAT the trial Magistrate erred in law in finding that an undated verifying affidavit as served is not a fatal defect to the pleadings of the plaintiff now respondent, and instead amended the same as if he was a litigant and devoid of leave to do the same.
THAT the trial magistrate erred in law and in fact in finding that the plaintiffs were entitled to bury the deceased by culture while disregarding proven and the only existing blood relations between the deceased and the 1st Appellant, which culture was unproven and could not be pleaded by strangers to the deceased.
THAT the trial Magistrate erred in law and in fact in failing to analyze the oral and documentary evidence in detail more so those on character of the respondents, and in particular the protracted history of litigation between the deceased and the 1st respondent certainly against the wishes of the deceased.
THAT the trial Magistrate erred in law and fact in disregarding the discernible wishes of the deceased as can be gleaned from history of criminal charges and complaints caused by the deceased against the Respondents, more glaring a threat to the life of the deceased during the period leading to his death.
THAT the trial Magistrate erred in law and fact in relying on extrinsic factors, while disregarding incriminating evidence of fraud against the deceased by the 1st respondent and his agents including the 2nd respondent, and in which he sued and was sued by the deceased during his life time and years leading to his death, a clear demonstration of the wishes of the deceased that he never wanted anything to do with his adversaries the respondents herein.
THAT the learned trial magistrate erred in law and in fact in making an alarming finding that the Appellant is the one who destroyed an imaginary and none existent house of the deceased, when it is uncontested that the deceased never had a house nor a home other than at the Appellants since his retirement..
THAT trial magistrate erred in law and in fact, in disregarding admission by the 1st respondent that he had already transferred the properties of the deceased during the pendency of the case, and worse still against an existing will in favour of the 1st Appellant.
THAT the learned trial magistrate erred in law and in fact in ignoring the evidence of JOSHUA NYAMORI ADVOCATE who had interacted with the deceased during his life time in preparing a power of attorney in favour of the Appellant prior to the deceased death, and from which his wishes before death are discernible.
THAT the learned trial magistrate erred in both law and fact in ignoring the hostilities spreading in protracted and costly litigation between the deceased and the 1st respondent and which were pivotal in tracing the wishes of the deceased.
THAT the learned trial magistrate erred in law and in fact in a sectarian analysis of evidence and the law applicable more so the degrees of consanguinity thus elevated unproven culture by dubious witnesses against unequivocal and proven blood relations hence an illegal burial.
THAT the learned trial magistrate erred in law and in fact by misdirecting his mind to property disputes, yet that is in effect what the court has actually set pace for determination of by ranking the respondents over the Appellants in consanguinity.
THAT the learned trial magistrate erred in law and in fact, in conferring a sister in law status to the 2nd Respondent, when the 1st respondent her own son, never proved whether he was a nephew or an uncle to the deceased and how such would be biologically practical.
THAT the learned trial magistrate erred in law and in fact in disregarding the adversarial nature of litigation and worse descended in the arena of trial, while denying the Appellant a chance to respond to his own unpleaded opinion, worse to pleadings filed by two firms of Advocates without amendments and for two years.
THAT the learned trial magistrate erred in law and in fact in ignoring the record of proceedings, more so those of his predecessors and a bloated history of non compliance with court orders by the plaintiffs now respondents as to filing of submissions and service thus tilting the contest in favour of the respondents despite their fatally flowed pleadings.
The issues that arise in this appeal are:-
Who was the rightful person to bury the deceased?
Whether an order of exhumation should be made to allow the deceased’s body to be exhumed for purposes of being reburied by the appellant.
Who gets the costs of the appeal?
On the 2 nd December 2024 when the matter came up before this court counsel for the appellant was absent but MR. ABANDE appeared for the respondents and took the date for judgment on 6/2/2025 however the same was not ready on that date.
APPELLANT’S CASE
The parties in this appeal filed written submissions as per the directions issued by the court.
The appellants contend that they were the rightful persons who should have buried the deceased.
Their argument is that the deceased during his life time did not enjoy a cordial relationship with the respondents thus the respondents had no right in burying the deceased.
The appellants further argued that the deceased had number of criminal charges and complaints against the respondents and that there was indeed a threat to the deceased’s life by the respondents.
The appellants further contended that the issue of purported kinship ties between the deceased and the respondent was an invention by the magistrate and was not backed by the evidence adduced by the appellants.
The only blood relative of the deceased as for per the appellants was only the 1 st appellant.
According to the appellants the protracted litigation between the deceased and the 1 st respondent certainly want against the wishes of the deceased.
The deceased died on the 5 th January 2020 while residing with the appellants maintain that naturally they ought to have been the rightful persons to bury the deceased.
Further, the appellant submitted that the deceased wrote power of Attorney allowing the 1 st appellant to pursue his cases against the 1 st respondent who allegedly had fraudulently appropriated the deceased brothers’ land.
The appellants disputed the kinship of the 1 st respondent with the deceased. The appellants contended that the 1 st respondent was not the deceased’s nephew.
The appellants maintained that PW1 could not have been the deceased’s uncle.
The appellants further contended that the learned Honorable magistrate’s finding that an undated verifying affidavit is not a fatal defect was an unmitigated error on the part of the court.
In conclusion, the appellants argued that had the appellants argued that had the trial court closely analyzed the evidence adduce by them, the court would not have granted the orders it did to the respondents. The appellants urged the court to allow the appeal.
RESPONDENT’S CASE
The respondents are opposed to the appeal and in their submissions, they contend that the persons here are Luo by tribe. According to them they are customary Law since there is no law governing burial disputes in Kenya.
The respondents contend that personal law of the individual would govern his or her burial.
In support of that argument the respondents cited Section 3 (2) of the Judicature Act which provides:-
"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."
The respondents further submitted on the duty to give effect to African customary law and cited the case of Edwin Otieno Ombajo Vs. Martin Odero Okumu Civil Appeal No. 209 of 1996 (1996) eKLR where the court held:
‘’ If African Customary Law is not caught up by the qualifications under
S.3 (2), above, then it must be given effect by the courts and must be applied in deciding cases before it but according to “substantial justice.” We are, also, of the view that the manner in which S. 3(2), of the Judicature Act, is worded gives flexibility to the administration of justice, as courts are thus empowered to weigh all the circumstances of a case before coming to a decision, without whittling down the place of customary law in the administration of justice in Kenya. So the discretion the courts have is not whether to apply customary law
or not, but the discretion is to consider whether to enforce a right, which under the law vests in a particular person, or not."
The respondents emphasize that whenever the court is called upon to resolve a dispute then the primary consideration should be to grant substantive justice by weighing all the circumstances of the case.
The respondent submitted that PW1 testified that the deceased was his uncle by virtue of the fact that the deceased and his father were half -brothers being sons of the same father.
According to the respondents it was the 1 st respondent who buried all the other brothers of the deceased.
The respondents argued that the totality of the evidence showed that they were the rightful persons to bury the deceased and a such the learned Honorable magistrate was correct in his decision.
The respondents also argued that the Luo customary law on burials had not been found to be repugnant to justice and morality thus the application on the same by the Lower court was proper.
In the respondents view the decision by the trial court was just in that the court allowed all the parties to participate in the burial of the deceased.
The respondent submitted that following the order the deceased was laid next to his partners and brothers.
The respondent further argued that the 2 nd respondent proved his relationship with the deceased thus Luo customary law was followed to the latter and the decision of the Lower court should be allowed.
ANALYSIS AND DETERMINATION
The duty of this court as a first appellate court is well settled in the case of Selle & Another Vs. Associated Motor Boat Co. Ltd [1968] E 123 and Peters Vs. Sunday Potst Ltd [1958] EA 424 .
The court’s duty is to analyze the evidence tendered before the lower court and from the evidence draw its own conclusions whilst remaining alive to the fact that unlike the lower court this court did not have the benefit of hearing or seeing the witnesses.
The deceased in this matter died way back on 5 th January 2021 over 4 years back.
The appellants have urged this court to intervene in this matter and review the decision of the lower court made on 28 th December 2022 allowing the respondents to take the body from the mortuary where it had stayed for about 2 years for burial.
The appellants prayer is that the decision be reversed and exhumation be ordered to allow them remove whatever is left of the deceased’s body for burial by themselves.
The crux of the appellants argument is that the respondents were not blood relatives of the deceased and that during the deceased’s lifetime, they had a very protracted litigation on land and also some criminal complaints.
It is important for the court to state here that to order an exhumation the party seeking the order must persuade the court that there is indeed a very compelling reason for exhumation such as a post mortem is required for purposes of investigation of the cause of death of the deceased or that the deceased’s remains are at the place they lie by mistake thus the need to move the body to another place for burial.
It could as well be a good ground for exhumation if it turns out that the body sought to be exhumed was actually not the body of the deceased who was intended to be buried at the site identified but due to mistake in identification at the mortuary the wrong body was taken and buried under the honest and mistaken believe that it was the body of the deceased named in the application.
The court has made this observation because the exhumation of a human remains is a very traumatic exercise which must never be approached casually. The family members of a deceased person must be spared the trauma unless there are very good reasons to exhume the body.
The Penal Code under Section 137 provides:
“ Whoever unlawfully hinders the burial of the dead body of any person , or without lawful authority in that behalf disinters, dissects or harms the dead body of any person or being under duty to cause dead body of any person to be buried fails to perform that duty, is guilty of a misdemeanor. ” The provision underscores the serious of the duty of persons charged with the responsibility of burying others to do so. The law appreciates that there must be some degree of decency in handling the remains of a deceased person.
It also criminalizes disinterring of bodies once buried without lawful authority.
The question that arises therefore is, what is the test to be met by a person who seeks authority to exhume a body.
As this court has stated above an applicant who seeks such an order must establish a compelling case for disinterring.
The uncontested fact in this appeal is that all parties were allowed by the lower court to participate in the burial and the appellants have not given the slightest indication that they were barred from participating in the burial or in any way discriminated against throughout the process. The burial proceeded without a hitch thus the court orders must have been respected.
The appellants claim to have had a right to bury the deceased just like the respondents do. The law of equity decrees that where two equities are equal the first in time prevails. The respondents interred the body thus they were the first to exercise their right to bury.
The respondents have submitted that the deceased was buried next to his parents and brothers. That fact is not contested.
The appellants have not stated where they intend to take the deceased body for burial should this court accede to their request. The natural presumption is that, in keeping with common practice among Kenyan Communities they would have laid the deceased body at the place he lies to date or any other place that is recognized for burial by the family including the place where the deceased was rested.
The question that this court poses is, what would be the legal basis of ordering an exhumation of the deceased’s body in the face of the facts of this case? This court finds absolutely none.
The burial site of the deceased is not in contention and there is no purpose that has been stated for disinterring the body thus in this courts view, the appellants are purely on an egoistic journey by mounting this suit.
The respondents have submitted that they performed the burial rites in line with the Luo customary law which they have urged this court to uphold.
The Judicature Act Section 3 (2) recognizes the place of customary Law in Kenya as a source of Law and so is Article 159 of the constitution. Customary Law is to be recognized, appreciated and applied in the resolution of disputes in this country subject only to the repugnancy clause.
The appellants have not taken issue with the application of Luo Customary law in this matter and considering that, that was the personal Law of the deceased the Lower court was right in recognizing and applying Luo Customary Law in the matter.
From the analysis of the evidence on record the respondents just like the appellants had the rights to bury the deceased and the respondents to whom the body of the deceased was committed for burial were equally entitled to bury the deceased.
In the end I find that the appeal has no merit and the same is hereby dismissed with no orders as to costs.
It is important before I pen off to state that it is the view of this court that the time has come for us as a people to revisit our practices and approach to certain issues of personal law. Burial disputes should by now be a thing of the past. There is no property in a dead body and we must all appreciate that to avoid unnecessary wrangles over burial rites which end up splitting families and sowing seeds of hatred.
The world has moved to embrace practices that minimize cost and emotional trauma that comes with some of these disputes. The African man must accept that there is no property in a dead body and all that a deceased person expects in death is a decent burial that reflects his wishes in life and the least expensive affair that his social standing in life would permit.
The tussle over who buries the deceased is an unnecessary struggle that only serves to stress the immediate family members.
The place of African customary law must be respected as Kenya moves towards the robust implementation of alternative dispute resolution mechanisms in line with Article 159 of the Constitution.
It is so ordered.
'