1. The Appellants filed an application dated 31 st March 2026 seeking the following reliefs:
i) Spent.
ii) That pending the hearing and determination of the intended appeal, a temporary injunction be issued restraining the Respondent, his agents, or any person acting on his behalf from removing, transporting, or burying the body of the late Christine Auma Owuor.
iii) That an order for stay of execution be issued against the order of Honourable Ayieta J. A. (RM) at Madiany delivered on 31/3/2026, specifically the order vacating the previous injunction and allowing the Respondent to proceed to the burial.
iv) That the cost of this application be costs in the appeal.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the 1 st Appellant sworn on even date. The Appellants’ gravamen is inter alia; that the Respondent through his advocate has openly in court, while seeking to have the interim orders of injunction earlier issued vacated, declared his intention to bury the deceased and therefore if he is allowed to do so, the subject matter of the dispute will be destroyed, rendering the intended and the substantive suit an academic exercise; that the trial court erred in law and fact by vacating the injunction while the substantive suit (regarding marital status and burial rights) remains active and pending determination on its merits thus failing to protect the subject matter of the entire claim by the Appellant; the court failed to apply the Oxygen principle (Article 159) and the Supreme Court precedent in Kenya Railways Corp V Okiya Omtatah, which holds that an affidavit is properly attested if the Advocate has a valid practicing certificate, regardless of the physical location of their officer stamp; that the Appellants, as the family of the deceased’s first husband, will suffer irreparable harm if the burial is conducted by the Respondent, as the custom and dignity of the deceased will be permanently violated; that the Honourable Trial Court instead of appreciating the fact that the Appellants filed a fresh application at the trial court, the court declined to issue interim orders and instead fixed a mention date for 7 th April 2026, which date is too far off to prevent the Respondent from creating a fait accompli (a completed act); that the Appellants have instituted the appeal and the application speedily without any delay and that the appeal raises weighty issues which the Court should address before the body of the deceased is buried until this appeal is determined; that no prejudice shall be occasioned to the Respondent if the order for stay of execution is made; that the Appellants’ appeal is arguable and stands an overwhelming chance of success; that the deceased is currently preserved at Matangwe mortuary which is the only thing standing between the Applicants and the total destruction of the subject matter of this suit; that the mention date of 7/4/2026 set by the trial court on the application filed under urgency seeking interim orders of injunction to determine the rightful burial place of the deceased will be rendered an academic and nugatory exercise; that the balance of convenience heavily favours the Applicants as the body can remain preserved at the mortuary until the appeal is heard, whereas the Respondent will suffer no irreparable harm by waiting for the legal process to conclude and that the Honourable Court grants the orders of stay and a temporary injunction to preserve the status quo pending the determination of the appeal.
3. The application was strenuously opposed by the Respondent who filed a replying affidavit dated 7/4/2026 wherein he averred inter alia; that he had married the deceased under African Christian marriage law and also Luo customary law; that he has a marriage certificate to that effect; that upon the marriage they retreated to Kabudha village where they cohabited until her demise; that the deceased prior to the marriage had been customarily to another man who is now deceased with the 1 st Appellant as their daughter; that he took care of the deceased’s children from her previous marriage; that the deceased who had been ailing was later hospitalized at Bondo Sub County Hopsital before being transferred to Jaramogi County Referral Hospital in Kisumu; that he handled all the hospital bills without any assistance from the Appellants herein; that the Appellants are engaging in forum shopping as they already have filed a similar application now pending before the lower court; that the Appellants are prosecuting two similar applications seeking similar reliefs; that the injunction sought is not merited; that the Appellants upon getting interim orders from this court still went ahead to pursue similar order in the trial court; that no good reasons have been availed to warrant the orders sought and that the application should be dismissed with costs.
4. The application was canvassed by way of written submissions.
5. Learned counsel for the Appellant submitted that the Appellants seek to arrest a situation where a subordinate court has effectively handed a "final victory" to the Respondent through a procedural technicality, thereby permitting the irreversible act of burial before the merits of a contested marriage can be ventilated.
6. Learned counsel submitted that the issues for determination were whether the intended Appeal is arguable or whether it is based on a mere procedural technicality contrary to Article 159 of the constitution; whether the Respondent’s marriage to the Deceased is a legal nullity due to a subsisting customary marriage; whether the Appeal will be rendered nugatory if the interim orders of injunction are not granted; whether part-compliance with a trial court’s direction (under the threat of dismissal) precludes a party from challenging the legality of the underlying order and whether the Respondent is estopped from relying on an Affidavit that suffers from the same "defect" he successfully used to strike out the Appellants' pleadings.
7. On the issue of arguability, it was submitted that the overriding objective under article 159 of the Constitution must be respected. It was submitted that the trial court struck out the Appellants' affidavits on a "minor geographical technicality" regarding the location of the Commissioner for Oaths' stamp. Under Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act, courts are mandated to deliver substantive justice without undue regard to technicalities. Reliance was placed In Kenya Railways Corporation v. Okiya Omtatah [2022] KESC 68 (KLR) , the Supreme Court clarified that an affidavit is validly attested as long as the Commissioner holds a valid practicing certificate. The geographical location of the stamp does not go to the root of the oath. The Appeal thus raises a fundamental question of law regarding judicial discretion and the misapplication of procedural rules.
8. As regards the doctrine of subsisting customary marriage, learned counsel submitted that the Respondent’s claim to the body rests on a Marriage Certificate. It was submitted that this document is a legal nullity for the following reasons; that the Deceased was the wife of the late Norbert Otieno Owimba; that under Luo Customary Law, marriage is a covenant initiated by dowry; that dowry has never been returned; that the Respondent explicitly stated that he did not pay dowry.
9. It was also submitted that Section 11(2)(a) of the Marriage Act, 2014 provides that a marriage is void if either party is in an existing marriage. Since the customary union was never dissolved, the deceased lacked the legal capacity to marry the Respondent. The Respondent was, at best, a "widow-inheritor" ( Jater ), a status that does not confer burial rights over an intact dowry marriage ( S.M. Otieno Case ).
10. On the nugatory principle, preservation of the status quo, it was submitted that in burial disputes, the injury is not "damages" but the permanent loss of the right to bury a kin in their rightful ancestral home. Once buried, the suit abates as it becomes an "academic exercise ."
11. It was submitted that the Respondent’s Advocate explicitly declared an intention to proceed with the burial immediately after the trial court vacated the interim orders. That the respondent even went on ahead to have an order rendering the Notice of motion application useless issued upon striking out the supporting Affidavit on the 1 st April 2026 and thus it is clear from the move that the Respondents were intending to remove the deceased from the mortuary and bury her before the mention date which was intended for the 7 th April 2026. That it is therefore this Honourable Court which actually preserved the subject matter by issuing the interim orders. Hadn't this Honourable Court not issued the interim orders, the subject matter would have long have been buried to the detriment of the Appellants. That in this case, the body is the subject matter ( res ). Once a burial occurs, the subject matter is destroyed. As held in James Apeli & Another v. Prisca Buluku [1980] LLR 1244 , the court has a duty to preserve the status quo to ensure that the eventual judgment is not "a mere paper on the wall."
12. It was submitted that the trial court’s refusal to grant interim protection while setting a distant mention date of 7 th April 2026 created a "legal vacuum" that emboldened the Respondent to create a fait accompli . This forced the appellants to move this Honourable Court to preserve the status quo on the subject matter, which they urge this Court to intervene to prevent the suit from abating.
13. As regards the legal rebuttal to the Respondent’s objection, it was stated that the Respondent’s Advocate on the 9 th April 2026 raised the issue of part compliance with the court direction having filed a fresh Verifying Affidavit to accompany the plaint. It was submitted that filing the fresh affidavit was a compulsory step to keep the suit alive (since the Plaint remained) and a precautionary measure to prevent a total collapse of the case while the Appellant’s sought to correct the legal error via appeal.
Further, the Respondent therefore suggests that the Appellants should have let their case die in the lower court to prove their commitment to the Appeal. It was submitted that filing the fresh affidavit was a rescue mission for the suit. That this Appeal is not about the new affidavit; it is about the unlawful destruction of the original record and the unwarranted vacation of orders that protected a human body. That the Appeal is very much alive. That the Respondent’s argument and/or insinuation that "compliance" ends the appeal is legally flawed. The trial court ordered a fresh affidavit within three (3) day and that failure to comply would have led to the striking out of the Plaint , which would have permanently ended the claim before the Appellants could even reach the High Court. That compliance was therefore a mandatory act of necessity to keep the seat of justice open and that it was therefore a mandatory act of necessity to keep the seat of justice open.
14. Learned counsel further submitted that following a court’s directions to save a suit from dismissal by filing a document under the duress of a court-imposed deadline does not constitute a waiver of the right to challenge the legality of that order and neither does it constitute an admission that the underlying ruling was correct. It is an act of preservation , not consent . The Appellants filed their Memorandum of Appeal immediately, which is the ultimate "protest" in law. That this Appeal seeks to reinstate the original Supporting Affidavit and the Interim Injunction , neither of which was restored by the mere filing of a fresh Verifying Affidavit. The 'compliance' mentioned by the Respondent is a procedural bandage that does not heal the substantive legal wound inflicted by the trial court and that to allow the Respondent to succeed on this technicality would be to reward a "gotcha" style of litigation which is against the spirit of Article 159 & Substantive Justice . The Appellants should not be punished for being diligent in their attempt to satisfy the trial court while simultaneously seeking a higher court's correction of a legal error."
15. On the issue of procedural hypocrisy and clean hand, the Respondent’s Replying Affidavit is itself "fatally defective" by the very standard he urged the lower court to adopt, the Respondent’s affidavit was sworn in Bondo but commissioned in Kisumu. If the Appellants' affidavits were "struck out" for a stamp-station mismatch, then by the Doctrine of Estoppel and Par Delictum, the Respondent cannot benefit from a standard he himself has failed to meet. Furthermore, the Respondent’s annexures are not certified/commissioned as required by the Oaths and Statutory Declarations Act, rendering them inadmissible as evidence. Under Order 19 Rule 7 of the Civil Procedure Rules, uncertified exhibits are inadmissible and should be expunged from the record.
16. As regards the issue of forum shopping being refuted, learned counsel submitted that the claim is malicious. That forum shopping involves hiding cases to get a "second bite." The Appellants have been transparent, informing both courts of the parallel proceedings. Following the trial court's abdication of its duty, the Appellants have since filed a Notice of Withdrawal of the lower court application. There is now only one application before this Court. The move was a necessity to escape a biased and hostile forum that failed to preserve the subject of this case.
17. Finally, the learned counsel concluded by submitting that the balance of convenience favors the preservation of the body. Mortuary fees are quantifiable; a wrongful burial is a permanent cultural and legal injury. We urge this Court to remain the sole arbiter of the status quo and prayed that a temporary injunction restraining the Respondent from burying the deceased, a stay of execution of the trial court orders dated31st March 2026 specifically the order vacating the previous injunction and allowing the Respondent to proceed with the burial and that the appeal be heard on its merits on a priority basis.
11. Learned counsel for the Respondent raised three issues for determination as follows:
i. Whether the Applicants have made out a case for grant of temporary injunction.
ii. Whether the Respondent has a right and duty to bury the deceased.
iii. Who should bear the cost for the application.
12. As regards whether the Applicants have made out a case for grant of interim order for injunction, it was submitted that the following three conditions must be satisfied before the grant of an injunction as was set out in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358:
a) The Applicants must establish a prima facie case with a probability of success;
b) The Applicants must establish that they will suffer irreparable injury if an injunction is not granted; and
c) If the court is in doubt, it will decide the application on a balance of convenience.
13. As to whether a prima facie case has been made, it was submitted that the Applicants have not established a prima facie case with a probability of success. At the heart of their application is the claim that the deceased was married to the father of the 1 st Applicant. They have not presented any evidence that the deceased was in a valid marriage with any of them or a member of their family. That they have not accounted for their relationship with the deceased from the time when she began living with the Respondent. That nothing has been placed before court to establish that the Applicants in any way were present in the life of the deceased prior to her death. They never took care of her or even visited her while she suffered in the hospital.
14. It was submitted that the deceased was legally married to the Respondent and a marriage certificate has been filed to that effect. By presenting a valid marriage certificate, the Respondent has satisfied the requirements of the legal proximity doctrine and he has proved that he was closer to the deceased than any other person.
15. Learned counsel submitted that the 2 nd and 3 rd Applicants have no locus standi to bring this suit since they were not in any relationship with the deceased. The deceased was never married to any of them. Further, a prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows:
“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” (Underlining for Emphasis)
16. It was further submitted that the Applicants’ claim over the body of the deceased is further premised on a case of fraud. We submit that fraud is not a simple matter that if it is pleaded, it must be specifically proved with cogent evidence. The Applicants have failed to prove what fraud was committed in registering the marriage between the Respondent and the deceased.
17. On the other hand, the Respondent in his response has filed both certificate of marriage and certificate of no objection to the notice given to the public on the intention of the Respondent and the deceased to marry. This clearly shows that the marriage was conducted in full compliance with the law and regulations. The Applicants have presented nothing before this Honourable Court to demonstrate that either the Respondent or the deceased lacked capacity or was unavailable to contract a marriage.
18. Again, the learned counsel stated that they had filed a letter from the area chief who has described the Respondent as the next of kin. Black’s Law Dictionary 14 th Edition defines next of kin as follows:
“In the law of descent and distribution, this term properly denotes the persons nearest of kindred to the decedent, that is, those who are most nearly related to him by blood; but it is sometimes construed to mean only those who are entitled to take under the statute of distributions, and sometimes to include other persons.”
19. That the Respondent and the deceased were in a contract of marriage. They had decided how to carry on with their lives. It is trite that this court cannot re-write a contract between parties. Anybody who was willing to challenge the marriage between the Deceased and the Respondents could have done so while the deceased live. Reliance was placed in the case of AP v PAP [2019] KEHC 5203 (KLR) it was held as follows:
“17. A marriage is a contract or a solemn union of willing partners, who a part from the normal differences ought to live in harmony and appreciating each other. One spouse cannot be forced on the other.”
20. Similarly, in Christopher Nderi Gathambo & Samuel Muthui Munene.. vs Samuel Muthui Munene [2003] KEHC 82 (KLR) which was handling a burial dispute over the remains a female teacher had the following to say:
“In the legal sense -
Marriage is a contract between one or more males and one or more females for establishment of a family…. It is also a civil contract entered into by consent of the parties with the form whether of a civil or religious nature prescribed by law.”
21. It was submitted that the deceased was married to one Norbert Otieno Owimba under the Luo customary laws then some claims are made which run afoul to the Constitution and the written law which states that the customary marriage was never dissolved and therefore the deceased was not available to marry. It was submitted that this sentiment is a misplaced argument especially when the statute provides clearly that death of a spouse dissolves marriage and as such there was no need for the marriage to be dissolved.
22. Learned Counsel placed reliance on Section 16(a) of the Marriage Act provided as follows:
“A marriage registered under this Act subsists until it is determined by—
(a) the death of a spouse;”
23. Further, section 15(1) of the Marriage Act is even more categorical as it provides as follows:
“15. Rights of widow and widowers
(1)A widow or widower may re-marry.”
24. It was submitted that while it is maintained that the deceased was never married to Norbert Otieno Owimba, a suggestion that her customary marriage to the said Norbert Otieno Owimba needed to be dissolved upon the latter’s death is to read the statute upside down.
25. As regards the issue if a widow could not marry after the death of the 1 st husband, it was submitted that it was the most absurd submission we’ve heard on this matter and therefore it renders the application of the said customary law null and void. The said customary law (if it exists) then is inconsistent with the Constitution, the written law and it is repugnant to morality and justice. Further, the customary law cannot tie a widow not to remarry while freely allowing the widower to remarry. Article 45(3) of the Constitution provides as follows:
“(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
To require from a widow that which is not required from a widower is to offend the constitution and the said must not be allowed to stand.
26. On the issue of payment of dowry by Norbert Otieno Owimba to the deceased’s family, it appears that the Applicants do not know the difference between dowry and bride price. Dowry is a personal gift to a woman and the same is not paid to the family of the bride. The same would have been paid even if marriage was to be dissolved. The court in the case of F B I v B G [2018] KEHC 8677 (KLR) had the following to say about the two:
“40. I agree with the Kadhi assessor that “bride price” and “dowry” are two different things, though the two have often been confused to mean the same thing. Bride price is a gift or payment made to the parents of the bride at marriage, while dowry is a gift given to the woman in a marriage, which becomes her sole property. The promise of dowry in the marriage is a contract and in my view is enforceable. The two goats of the respondent were not given to the appellant. Now that the marriage is for dissolution and the two cows promised to the appellant have not been paid by the respondent to the appellant, I order that the respondent do give the appellant the two cows or the money equivalent of Kshs,16,500/= per cow which translates to Kshs.33,000/= as dowry within 60 days from the date of this judgment.”
Further, the Applicants would table any evidence that the bride price was paid. The bride price if any was paid to a family. That even affidavit evidence of any member of the deceased’s family would suffice. Nothing has been presented, not even a photo to back up such claims. None of the Applicants received the said dowry (read bride price) and therefore none of them can vouch for the veracity of the claims.
27. It was further submitted that an affidavit of an elder sister to the deceased was filed categorically denying that no bride price (dowry) was ever paid. She is a member of the deceased family and she would know if any dowry or bride price was paid. That there would be any evidence by an expert in Luo customary law even if it is just affidavit evidence. None of the Applicants has claimed to be an expert in Luo customary law and such their testimonies cannot be treated as truth but as mere hearsay.
28. As regards the issue of irreparable injury, it was submitted that the Applicants were not living with the deceased prior to her demise, and they have presented nothing in support of the contrary position. Instead, they have pleaded that the Respondent was living with the deceased.
29. The learned counsel submitted that an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages. In this case, the Applicants have not demonstrated what injury they will suffer if the Respondent is allowed to bury the deceased.
30. It was submitted that in any event, the 1 st Applicant is just as a biological daughter of the deceased as her sister Anjeline Atieno who is also the biological daughter of the deceased. The said Anjeline Atieno wishes that the deceased should be buried at the home of the Respondent, where they have lived all along. The 1 st Applicant does not have more right than her sister who is also the biological daughter of the deceased.
31. Further, it was submitted that it is trite law that there is no property in a dead body and as such the Applicants will not suffer any loss even if the deceased was to be buried at the home of the Respondent where she spent her time and last days on earth.
32. Again, counsel stated that the law that governs applications for injunctions is premised under Order 40 Rule 1 of the Civil Procedure Rules 2010 which provides as follows:
Order 40 temporary injunctions and interlocutory orders
[Order 40. rule 1] Cases in which temporary injunction may be granted.
1. Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
It was submitted that the said law talks extensively of property and it was further stated that that there is no property in a dead body and thus there would be no property capable of being preserved by way of an order of injunction. Further, the Applicants having failed to establish a prima facie case, we needed not to even deal with the second and third conditions. We place further reliance on the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where the Court of Appeal stated as follows:
“…these are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the courts must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.”
The learned counsel further stated that the Applicants have failed to establish a prima facie case with a probability of success, hence this Honourable Court should find and hold that it will be immaterial to delve into the other two conditions to be considered on grant of temporary injunction as was held in the case of Commercial Finance Co. Ltd v Afraha Education Society & Others Civil Appeal No. 142 of 1999 in the following words:
“….the judge should address himself sequentially on the conditions for granting an injunction instead of proceeding straight away to address himself on the third condition because where the Applicant has no registered interest in the land comprised in the title dispute and therefore has not demonstrated that it has a prima facie case with probability of success no interlocutory injunction would be available.”
Again, it was submitted that the Applicants have not presented any evidence to show that they have any relationship with the deceased capable of being protected through the orders sought. On the other hand, the Respondent has filed a marriage certificate which is prima facie evidence that marriage exists between him and the deceased and that this court is being invited to presume marriage between the deceased and Norbert Otieno Owimba. It was urged that this Honourable Court should decline such invitation as there is no need to presume a customary marriage where a valid marriage between the Respondent and the deceased exists as evidenced by a marriage certificate.
33. As regards the issue of balance of convenience, it was submitted that the Applicants are guilty of misrepresentation and concealment of material facts, as they are aware that the deceased was living with the Respondent at the home of the Respondent. In fact, even the 1 st Applicant and her sister Anjeline Atieno have all along lived with the deceased and Respondent at the home of the Respondent. That the 2 nd and 3 rd Applicants have also concealed the material facts by not informing this court that they never visited the deceased while she was sick in hospital. Finally, the 1 st Applicant has admitted before this court that when the family of her husband came to know her home, she took them to the home of the Respondent and no
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i) Spent.
ii) That pending the hearing and determination of the intended appeal, a temporary injunction be issued restraining the Respondent, his agents, or any person acting on his behalf from removing, transporting, or burying the body of the late Christine Auma Owuor.
iii) That an order for stay of execution be issued against the order of Honourable Ayieta J. A. (RM) at Madiany delivered on 31/3/2026, specifically the order vacating the previous injunction and allowing the Respondent to proceed to the burial.
iv) That the cost of this application be costs in the appeal.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the 1 st Appellant sworn on even date. The Appellants’ gravamen is inter alia; that the Respondent through his advocate has openly in court, while seeking to have the interim orders of injunction earlier issued vacated, declared his intention to bury the deceased and therefore if he is allowed to do so, the subject matter of the dispute will be destroyed, rendering the intended and the substantive suit an academic exercise; that the trial court erred in law and fact by vacating the injunction while the substantive suit (regarding marital status and burial rights) remains active and pending determination on its merits thus failing to protect the subject matter of the entire claim by the Appellant; the court failed to apply the Oxygen principle (Article 159) and the Supreme Court precedent in Kenya Railways Corp V Okiya Omtatah, which holds that an affidavit is properly attested if the Advocate has a valid practicing certificate, regardless of the physical location of their officer stamp; that the Appellants, as the family of the deceased’s first husband, will suffer irreparable harm if the burial is conducted by the Respondent, as the custom and dignity of the deceased will be permanently violated; that the Honourable Trial Court instead of appreciating the fact that the Appellants filed a fresh application at the trial court, the court declined to issue interim orders and instead fixed a mention date for 7 th April 2026, which date is too far off to prevent the Respondent from creating a fait accompli (a completed act); that the Appellants have instituted the appeal and the application speedily without any delay and that the appeal raises weighty issues which the Court should address before the body of the deceased is buried until this appeal is determined; that no prejudice shall be occasioned to the Respondent if the order for stay of execution is made; that the Appellants’ appeal is arguable and stands an overwhelming chance of success; that the deceased is currently preserved at Matangwe mortuary which is the only thing standing between the Applicants and the total destruction of the subject matter of this suit; that the mention date of 7/4/2026 set by the trial court on the application filed under urgency seeking interim orders of injunction to determine the rightful burial place of the deceased will be rendered an academic and nugatory exercise; that the balance of convenience heavily favours the Applicants as the body can remain preserved at the mortuary until the appeal is heard, whereas the Respondent will suffer no irreparable harm by waiting for the legal process to conclude and that the Honourable Court grants the orders of stay and a temporary injunction to preserve the status quo pending the determination of the appeal.
3. The application was strenuously opposed by the Respondent who filed a replying affidavit dated 7/4/2026 wherein he averred inter alia; that he had married the deceased under African Christian marriage law and also Luo customary law; that he has a marriage certificate to that effect; that upon the marriage they retreated to Kabudha village where they cohabited until her demise; that the deceased prior to the marriage had been customarily to another man who is now deceased with the 1 st Appellant as their daughter; that he took care of the deceased’s children from her previous marriage; that the deceased who had been ailing was later hospitalized at Bondo Sub County Hopsital before being transferred to Jaramogi County Referral Hospital in Kisumu; that he handled all the hospital bills without any assistance from the Appellants herein; that the Appellants are engaging in forum shopping as they already have filed a similar application now pending before the lower court; that the Appellants are prosecuting two similar applications seeking similar reliefs; that the injunction sought is not merited; that the Appellants upon getting interim orders from this court still went ahead to pursue similar order in the trial court; that no good reasons have been availed to warrant the orders sought and that the application should be dismissed with costs.
4. The application was canvassed by way of written submissions.
5. Learned counsel for the Appellant submitted that the Appellants seek to arrest a situation where a subordinate court has effectively handed a "final victory" to the Respondent through a procedural technicality, thereby permitting the irreversible act of burial before the merits of a contested marriage can be ventilated.
6. Learned counsel submitted that the issues for determination were whether the intended Appeal is arguable or whether it is based on a mere procedural technicality contrary to Article 159 of the constitution; whether the Respondent’s marriage to the Deceased is a legal nullity due to a subsisting customary marriage; whether the Appeal will be rendered nugatory if the interim orders of injunction are not granted; whether part-compliance with a trial court’s direction (under the threat of dismissal) precludes a party from challenging the legality of the underlying order and whether the Respondent is estopped from relying on an Affidavit that suffers from the same "defect" he successfully used to strike out the Appellants' pleadings.
7. On the issue of arguability, it was submitted that the overriding objective under article 159 of the Constitution must be respected. It was submitted that the trial court struck out the Appellants' affidavits on a "minor geographical technicality" regarding the location of the Commissioner for Oaths' stamp. Under Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act, courts are mandated to deliver substantive justice without undue regard to technicalities. Reliance was placed In Kenya Railways Corporation v. Okiya Omtatah [2022] KESC 68 (KLR) , the Supreme Court clarified that an affidavit is validly attested as long as the Commissioner holds a valid practicing certificate. The geographical location of the stamp does not go to the root of the oath. The Appeal thus raises a fundamental question of law regarding judicial discretion and the misapplication of procedural rules.
8. As regards the doctrine of subsisting customary marriage, learned counsel submitted that the Respondent’s claim to the body rests on a Marriage Certificate. It was submitted that this document is a legal nullity for the following reasons; that the Deceased was the wife of the late Norbert Otieno Owimba; that under Luo Customary Law, marriage is a covenant initiated by dowry; that dowry has never been returned; that the Respondent explicitly stated that he did not pay dowry.
9. It was also submitted that Section 11(2)(a) of the Marriage Act, 2014 provides that a marriage is void if either party is in an existing marriage. Since the customary union was never dissolved, the deceased lacked the legal capacity to marry the Respondent. The Respondent was, at best, a "widow-inheritor" ( Jater ), a status that does not confer burial rights over an intact dowry marriage ( S.M. Otieno Case ).
10. On the nugatory principle, preservation of the status quo, it was submitted that in burial disputes, the injury is not "damages" but the permanent loss of the right to bury a kin in their rightful ancestral home. Once buried, the suit abates as it becomes an "academic exercise ."
11. It was submitted that the Respondent’s Advocate explicitly declared an intention to proceed with the burial immediately after the trial court vacated the interim orders. That the respondent even went on ahead to have an order rendering the Notice of motion application useless issued upon striking out the supporting Affidavit on the 1 st April 2026 and thus it is clear from the move that the Respondents were intending to remove the deceased from the mortuary and bury her before the mention date which was intended for the 7 th April 2026. That it is therefore this Honourable Court which actually preserved the subject matter by issuing the interim orders. Hadn't this Honourable Court not issued the interim orders, the subject matter would have long have been buried to the detriment of the Appellants. That in this case, the body is the subject matter ( res ). Once a burial occurs, the subject matter is destroyed. As held in James Apeli & Another v. Prisca Buluku [1980] LLR 1244 , the court has a duty to preserve the status quo to ensure that the eventual judgment is not "a mere paper on the wall."
12. It was submitted that the trial court’s refusal to grant interim protection while setting a distant mention date of 7 th April 2026 created a "legal vacuum" that emboldened the Respondent to create a fait accompli . This forced the appellants to move this Honourable Court to preserve the status quo on the subject matter, which they urge this Court to intervene to prevent the suit from abating.
13. As regards the legal rebuttal to the Respondent’s objection, it was stated that the Respondent’s Advocate on the 9 th April 2026 raised the issue of part compliance with the court direction having filed a fresh Verifying Affidavit to accompany the plaint. It was submitted that filing the fresh affidavit was a compulsory step to keep the suit alive (since the Plaint remained) and a precautionary measure to prevent a total collapse of the case while the Appellant’s sought to correct the legal error via appeal.
Further, the Respondent therefore suggests that the Appellants should have let their case die in the lower court to prove their commitment to the Appeal. It was submitted that filing the fresh affidavit was a rescue mission for the suit. That this Appeal is not about the new affidavit; it is about the unlawful destruction of the original record and the unwarranted vacation of orders that protected a human body. That the Appeal is very much alive. That the Respondent’s argument and/or insinuation that "compliance" ends the appeal is legally flawed. The trial court ordered a fresh affidavit within three (3) day and that failure to comply would have led to the striking out of the Plaint , which would have permanently ended the claim before the Appellants could even reach the High Court. That compliance was therefore a mandatory act of necessity to keep the seat of justice open and that it was therefore a mandatory act of necessity to keep the seat of justice open.
14. Learned counsel further submitted that following a court’s directions to save a suit from dismissal by filing a document under the duress of a court-imposed deadline does not constitute a waiver of the right to challenge the legality of that order and neither does it constitute an admission that the underlying ruling was correct. It is an act of preservation , not consent . The Appellants filed their Memorandum of Appeal immediately, which is the ultimate "protest" in law. That this Appeal seeks to reinstate the original Supporting Affidavit and the Interim Injunction , neither of which was restored by the mere filing of a fresh Verifying Affidavit. The 'compliance' mentioned by the Respondent is a procedural bandage that does not heal the substantive legal wound inflicted by the trial court and that to allow the Respondent to succeed on this technicality would be to reward a "gotcha" style of litigation which is against the spirit of Article 159 & Substantive Justice . The Appellants should not be punished for being diligent in their attempt to satisfy the trial court while simultaneously seeking a higher court's correction of a legal error."
15. On the issue of procedural hypocrisy and clean hand, the Respondent’s Replying Affidavit is itself "fatally defective" by the very standard he urged the lower court to adopt, the Respondent’s affidavit was sworn in Bondo but commissioned in Kisumu. If the Appellants' affidavits were "struck out" for a stamp-station mismatch, then by the Doctrine of Estoppel and Par Delictum, the Respondent cannot benefit from a standard he himself has failed to meet. Furthermore, the Respondent’s annexures are not certified/commissioned as required by the Oaths and Statutory Declarations Act, rendering them inadmissible as evidence. Under Order 19 Rule 7 of the Civil Procedure Rules, uncertified exhibits are inadmissible and should be expunged from the record.
16. As regards the issue of forum shopping being refuted, learned counsel submitted that the claim is malicious. That forum shopping involves hiding cases to get a "second bite." The Appellants have been transparent, informing both courts of the parallel proceedings. Following the trial court's abdication of its duty, the Appellants have since filed a Notice of Withdrawal of the lower court application. There is now only one application before this Court. The move was a necessity to escape a biased and hostile forum that failed to preserve the subject of this case.
17. Finally, the learned counsel concluded by submitting that the balance of convenience favors the preservation of the body. Mortuary fees are quantifiable; a wrongful burial is a permanent cultural and legal injury. We urge this Court to remain the sole arbiter of the status quo and prayed that a temporary injunction restraining the Respondent from burying the deceased, a stay of execution of the trial court orders dated31st March 2026 specifically the order vacating the previous injunction and allowing the Respondent to proceed with the burial and that the appeal be heard on its merits on a priority basis.
11. Learned counsel for the Respondent raised three issues for determination as follows:
i. Whether the Applicants have made out a case for grant of temporary injunction.
ii. Whether the Respondent has a right and duty to bury the deceased.
iii. Who should bear the cost for the application.
12. As regards whether the Applicants have made out a case for grant of interim order for injunction, it was submitted that the following three conditions must be satisfied before the grant of an injunction as was set out in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358:
a) The Applicants must establish a prima facie case with a probability of success;
b) The Applicants must establish that they will suffer irreparable injury if an injunction is not granted; and
c) If the court is in doubt, it will decide the application on a balance of convenience.
13. As to whether a prima facie case has been made, it was submitted that the Applicants have not established a prima facie case with a probability of success. At the heart of their application is the claim that the deceased was married to the father of the 1 st Applicant. They have not presented any evidence that the deceased was in a valid marriage with any of them or a member of their family. That they have not accounted for their relationship with the deceased from the time when she began living with the Respondent. That nothing has been placed before court to establish that the Applicants in any way were present in the life of the deceased prior to her death. They never took care of her or even visited her while she suffered in the hospital.
14. It was submitted that the deceased was legally married to the Respondent and a marriage certificate has been filed to that effect. By presenting a valid marriage certificate, the Respondent has satisfied the requirements of the legal proximity doctrine and he has proved that he was closer to the deceased than any other person.
15. Learned counsel submitted that the 2 nd and 3 rd Applicants have no locus standi to bring this suit since they were not in any relationship with the deceased. The deceased was never married to any of them. Further, a prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows:
“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” (Underlining for Emphasis)
16. It was further submitted that the Applicants’ claim over the body of the deceased is further premised on a case of fraud. We submit that fraud is not a simple matter that if it is pleaded, it must be specifically proved with cogent evidence. The Applicants have failed to prove what fraud was committed in registering the marriage between the Respondent and the deceased.
17. On the other hand, the Respondent in his response has filed both certificate of marriage and certificate of no objection to the notice given to the public on the intention of the Respondent and the deceased to marry. This clearly shows that the marriage was conducted in full compliance with the law and regulations. The Applicants have presented nothing before this Honourable Court to demonstrate that either the Respondent or the deceased lacked capacity or was unavailable to contract a marriage.
18. Again, the learned counsel stated that they had filed a letter from the area chief who has described the Respondent as the next of kin. Black’s Law Dictionary 14 th Edition defines next of kin as follows:
“In the law of descent and distribution, this term properly denotes the persons nearest of kindred to the decedent, that is, those who are most nearly related to him by blood; but it is sometimes construed to mean only those who are entitled to take under the statute of distributions, and sometimes to include other persons.”
19. That the Respondent and the deceased were in a contract of marriage. They had decided how to carry on with their lives. It is trite that this court cannot re-write a contract between parties. Anybody who was willing to challenge the marriage between the Deceased and the Respondents could have done so while the deceased live. Reliance was placed in the case of AP v PAP [2019] KEHC 5203 (KLR) it was held as follows:
“17. A marriage is a contract or a solemn union of willing partners, who a part from the normal differences ought to live in harmony and appreciating each other. One spouse cannot be forced on the other.”
20. Similarly, in Christopher Nderi Gathambo & Samuel Muthui Munene.. vs Samuel Muthui Munene [2003] KEHC 82 (KLR) which was handling a burial dispute over the remains a female teacher had the following to say:
“In the legal sense -
Marriage is a contract between one or more males and one or more females for establishment of a family…. It is also a civil contract entered into by consent of the parties with the form whether of a civil or religious nature prescribed by law.”
21. It was submitted that the deceased was married to one Norbert Otieno Owimba under the Luo customary laws then some claims are made which run afoul to the Constitution and the written law which states that the customary marriage was never dissolved and therefore the deceased was not available to marry. It was submitted that this sentiment is a misplaced argument especially when the statute provides clearly that death of a spouse dissolves marriage and as such there was no need for the marriage to be dissolved.
22. Learned Counsel placed reliance on Section 16(a) of the Marriage Act provided as follows:
“A marriage registered under this Act subsists until it is determined by—
(a) the death of a spouse;”
23. Further, section 15(1) of the Marriage Act is even more categorical as it provides as follows:
“15. Rights of widow and widowers
(1)A widow or widower may re-marry.”
24. It was submitted that while it is maintained that the deceased was never married to Norbert Otieno Owimba, a suggestion that her customary marriage to the said Norbert Otieno Owimba needed to be dissolved upon the latter’s death is to read the statute upside down.
25. As regards the issue if a widow could not marry after the death of the 1 st husband, it was submitted that it was the most absurd submission we’ve heard on this matter and therefore it renders the application of the said customary law null and void. The said customary law (if it exists) then is inconsistent with the Constitution, the written law and it is repugnant to morality and justice. Further, the customary law cannot tie a widow not to remarry while freely allowing the widower to remarry. Article 45(3) of the Constitution provides as follows:
“(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
To require from a widow that which is not required from a widower is to offend the constitution and the said must not be allowed to stand.
26. On the issue of payment of dowry by Norbert Otieno Owimba to the deceased’s family, it appears that the Applicants do not know the difference between dowry and bride price. Dowry is a personal gift to a woman and the same is not paid to the family of the bride. The same would have been paid even if marriage was to be dissolved. The court in the case of F B I v B G [2018] KEHC 8677 (KLR) had the following to say about the two:
“40. I agree with the Kadhi assessor that “bride price” and “dowry” are two different things, though the two have often been confused to mean the same thing. Bride price is a gift or payment made to the parents of the bride at marriage, while dowry is a gift given to the woman in a marriage, which becomes her sole property. The promise of dowry in the marriage is a contract and in my view is enforceable. The two goats of the respondent were not given to the appellant. Now that the marriage is for dissolution and the two cows promised to the appellant have not been paid by the respondent to the appellant, I order that the respondent do give the appellant the two cows or the money equivalent of Kshs,16,500/= per cow which translates to Kshs.33,000/= as dowry within 60 days from the date of this judgment.”
Further, the Applicants would table any evidence that the bride price was paid. The bride price if any was paid to a family. That even affidavit evidence of any member of the deceased’s family would suffice. Nothing has been presented, not even a photo to back up such claims. None of the Applicants received the said dowry (read bride price) and therefore none of them can vouch for the veracity of the claims.
27. It was further submitted that an affidavit of an elder sister to the deceased was filed categorically denying that no bride price (dowry) was ever paid. She is a member of the deceased family and she would know if any dowry or bride price was paid. That there would be any evidence by an expert in Luo customary law even if it is just affidavit evidence. None of the Applicants has claimed to be an expert in Luo customary law and such their testimonies cannot be treated as truth but as mere hearsay.
28. As regards the issue of irreparable injury, it was submitted that the Applicants were not living with the deceased prior to her demise, and they have presented nothing in support of the contrary position. Instead, they have pleaded that the Respondent was living with the deceased.
29. The learned counsel submitted that an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages. In this case, the Applicants have not demonstrated what injury they will suffer if the Respondent is allowed to bury the deceased.
30. It was submitted that in any event, the 1 st Applicant is just as a biological daughter of the deceased as her sister Anjeline Atieno who is also the biological daughter of the deceased. The said Anjeline Atieno wishes that the deceased should be buried at the home of the Respondent, where they have lived all along. The 1 st Applicant does not have more right than her sister who is also the biological daughter of the deceased.
31. Further, it was submitted that it is trite law that there is no property in a dead body and as such the Applicants will not suffer any loss even if the deceased was to be buried at the home of the Respondent where she spent her time and last days on earth.
32. Again, counsel stated that the law that governs applications for injunctions is premised under Order 40 Rule 1 of the Civil Procedure Rules 2010 which provides as follows:
Order 40 temporary injunctions and interlocutory orders
[Order 40. rule 1] Cases in which temporary injunction may be granted.
1. Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
It was submitted that the said law talks extensively of property and it was further stated that that there is no property in a dead body and thus there would be no property capable of being preserved by way of an order of injunction. Further, the Applicants having failed to establish a prima facie case, we needed not to even deal with the second and third conditions. We place further reliance on the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where the Court of Appeal stated as follows:
“…these are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the courts must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.”
The learned counsel further stated that the Applicants have failed to establish a prima facie case with a probability of success, hence this Honourable Court should find and hold that it will be immaterial to delve into the other two conditions to be considered on grant of temporary injunction as was held in the case of Commercial Finance Co. Ltd v Afraha Education Society & Others Civil Appeal No. 142 of 1999 in the following words:
“….the judge should address himself sequentially on the conditions for granting an injunction instead of proceeding straight away to address himself on the third condition because where the Applicant has no registered interest in the land comprised in the title dispute and therefore has not demonstrated that it has a prima facie case with probability of success no interlocutory injunction would be available.”
Again, it was submitted that the Applicants have not presented any evidence to show that they have any relationship with the deceased capable of being protected through the orders sought. On the other hand, the Respondent has filed a marriage certificate which is prima facie evidence that marriage exists between him and the deceased and that this court is being invited to presume marriage between the deceased and Norbert Otieno Owimba. It was urged that this Honourable Court should decline such invitation as there is no need to presume a customary marriage where a valid marriage between the Respondent and the deceased exists as evidenced by a marriage certificate.
33. As regards the issue of balance of convenience, it was submitted that the Applicants are guilty of misrepresentation and concealment of material facts, as they are aware that the deceased was living with the Respondent at the home of the Respondent. In fact, even the 1 st Applicant and her sister Anjeline Atieno have all along lived with the deceased and Respondent at the home of the Respondent. That the 2 nd and 3 rd Applicants have also concealed the material facts by not informing this court that they never visited the deceased while she was sick in hospital. Finally, the 1 st Applicant has admitted before this court that when the family of her husband came to know her home, she took them to the home of the Respondent and no
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