(Being an appeal from the judgement and resultant decree of the Magistrate’s Court at Bondo (Hon J.P Nandi (SPM)) dated 17 th December 2024 in Civil Case No. E59B of 2022)
1. This is a first appeal arising from the Judgment and Decree of the Bondo Senior Principal Magistrate’s Court in Civil Case No. E59B of 2022 delivered on 17th December 2024. The trial court dismissed the Appellant's suit with costs to the 1st and 2nd Respondents finding that the Appellant had failed to prove the existence of a customary marriage between the deceased, Syprosa Auma Ogonda (hereinafter "the Deceased"), and the Appellant's late father Richard Onduru Bunde.
2. Aggrieved by the wholesale decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 2 nd April 2025 wherein they raised the following grounds of appeal namely; -
a) THAT the trial court failed to properly evaluate the evidence adduced on the issue of dowry as evidenced by the plaintiff's witnesses arriving at the wrong conclusion and an error in both fact and law.
b) THAT the trial court failed to consider and analyse the plaintiff's submissions resulting in a reversible error in fact.
c) THAT the trial court failed to analyse the evidence as adduced thereby resulting in the dismissal of the suit a reversible error.
d) THAT the trial court failed to establish the unrebutted testimony from the plaintiffs witnesses an error in fact.
e) THAT the trial court failed to consider the 3rd defendants testimony and documents collaborated the plaintiff's evidence on the key issues at trial thereby an error in both fact and law.
f) THAT the trial court failed to analyse the evidence in totality resulting in the wrong finding that there was no marriage between Bunde and Syprose thereby resulting in dismissal of the suit an error in fact.
3. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123.
4. The dispute centers on the marital status of the Deceased who passed away on 24th February 2013 and was interred shortly thereafter on land parcel SOUTH SAKWA/MIGWENA/13.
5. The Appellant suing as the legal representative of the Estate of Richard Onduru Bunde asserts that the Deceased was his stepmother and was lawfully married to his father under Luo Customary Law. Consequently, he contends her burial on the disputed land belonging to the family of the late Aggrey Opang Onyango was culturally offensive and unlawful. He prayed for declarations of marriage, a mandatory order for exhumation and reburial at Nyalenda, Kolwa West within Kisumu County next to his father's grave.
6. 1 st Defendant (the biological firstborn son of the deceased) and the 2 nd Defendant (brother to the late Aggrey Opang Onyango) strongly opposed the suit. They asserted that the deceased was never married to anyone else except Aggrey Opang Onyango. They produced a sworn Affidavit of Marriage executed by Syprosa herself in 2006 confirming this marriage. They stated that she was buried lawfully according to cultural norms on her husband’s family land where her biological children and family had no issue with her resting place.
7. The 3 rd Defendant (another brother of Aggrey Opang) supported the Plaintiff. He testified that his late brother Aggrey was never married to Syprosa that he had previously obtained a High Court injunction in 2013 to stop the burial (which was overtaken by events before service) and agreed that her burial on the suit land had no cultural basis.
8. In a judgment delivered on 17th December 2024, the trial Magistrate (Hon. J.P. Nandi) dismissed the Plaintiff's suit in its entirety.
9. Patrick Omondi Bunde (PW1) ,The witness testified that he was the Plaintiff in the case and a resident of Kolwa, Kisumu County. He stated that his late father, Richard Onduru Bunde had married the deceased, Syprosa Auma Ogonda as his second wife under Luo customary law. He testified that the deceased passed away on 24th February 2013 and was subsequently buried on land parcel South Sakwa/Migwena/1346. He asserted that the land belonged to the family of the late Aggrey Opang Onyango to whom the deceased was never married. He testified that his father died on 31st August 2008 and was buried in Nyalenda, Kolwa West. He informed the court that the deceased should be exhumed and reburied next to his father’s grave in Nyalenda as keeping her buried on the 1st Defendant’s family land was a taboo under Luo customs. Under cross-examination, the witness admitted that he did not produce any marriage certificate or dowry agreement to prove the marriage between his father and the deceased. He further admitted that the name of the deceased Syprosa was completely omitted from his father’s funeral program and obituary in 2008 as one of his surviving wives. He admitted that he had not visited the deceased when she was hospitalized in Nairobi in 2004 and that he only found out about her death in 2013 long after she had already been buried.
10. John Okeyo Bunde (PW2), The witness testified that he was the paternal uncle of the Plaintiff. He stated that he was present when negotiations for the customary marriage between Richard Onduru Bunde and Syprosa Auma Ogonda took place. He testified that their family paid three head of cattle and a goat as dowry to the deceased’s family in Gem. He asserted that the deceased lived with Richard Bunde as his wife and that they had children together. Under cross-examination, the witness admitted that he was a young boy at the time the alleged dowry negotiations took place and did not actively participate in the discussions. He admitted that he had no written receipt or customary agreement showing that the livestock was handed over or accepted by the deceased’s family.
11. Caleb Ochola (PW3), The witness testified that he was a relative of the Bunde family and a resident of Nyalenda. He stated that he knew Syprosa Auma Ogonda as the second wife of Richard Onduru Bunde. He testified that he assisted in driving the dowry animals to the home of the deceased’s parents in Gem. He stated that to his knowledge the deceased was never married to Aggrey Opang Onyango. Under cross-examination, the witness admitted that he could not remember the exact year the animals were driven to Gem. He also conceded that he was not present inside the house when the dowry negotiations were being concluded and could not verify who signed the customary agreements if any existed.
12. Edgar Marvin Ochieng Onduru (DW1) The witness testified that he was the 1st Defendant and the biological firstborn son of the deceased, Syprosa Auma Ogonda. He stated that his mother was lawfully married to the late Aggrey Opang Onyango. He testified that they lived together as a family on land parcel South Sakwa/Migwena/1346 which was his late father’s family land. He produced a certified copy of a sworn Affidavit of Marriage executed by his late mother in the year 2006 in which she explicitly declared that she was married to Aggrey Opang Onyango. He testified that his mother was buried peacefully on 9th March 2013 on her matrimonial home with the consent of her children, her maiden family and local elders. He stated that the Plaintiff’s suit was motivated by malice and a desire to interfere with their family land. Under cross-examination, the witness denied that his mother was ever married to Richard Onduru Bunde. He stated that his mother never lived in Nyalenda, Kisumu and that her children had always recognized Aggrey Opang Onyango as their father.
13. Alexander Oyier Onyango (DW2), The witness testified that he was the 2nd Defendant and a brother to the late Aggrey Opang Onyango. He stated that the suit land South Sakwa/Migwena/1346 belonged to their late father and that Aggrey Opang was entitled to a portion of it. He testified that Syprosa Auma Ogonda lived on the land as Aggrey's wife and that she constructed her home ( ligala ) there. He testified that upon her death in February 2013, the family of Aggrey Opang and the deceased’s maiden family coordinated her burial and she was laid to rest in accordance with Luo customs on her husband’s land. Under cross-examination, the witness maintained that the 3rd Defendant Stephen Juma Onyango was acting out of family malice in supporting the Plaintiff. He testified that the 3rd Defendant’s previous attempt to stop the burial in 2013 via a High Court injunction was dismissed and overtaken by events
14. Stephen Juma Onyango (DW3), The witness testified that he was the 3rd Defendant and a brother to the late Aggrey Opang Onyango. He testified in support of the Plaintiff's case. He stated that his late brother Aggrey was never married to Syprosa Auma Ogonda and that she had no right to be buried on land parcel South Sakwa/Migwena/1346. He testified that in March 2013, he had filed a suit at the High Court in Kisumu and obtained an injunction to stop her burial but the 1st and 2nd Defendants rushed and buried her before the order could be served. He agreed that her remains should be exhumed and moved to her rightful husband’s home in Kisumu. Under cross-examination, the witness admitted that he did not live on the suit land and had been in a long-standing land dispute with his brothers. He admitted that the deceased’s biological children did not support the exhumation and wished for their mother to remain buried where she was.
15. Jane Atieno Otenda (DW4), The witness testified that she was the biological sister of the deceased, Syprosa Auma Ogonda. She testified that she was surprised to find her name listed as a witness for the Plaintiff in the case. She categorically disowned the witness statement filed under her name by the Plaintiff’s advocates stating that she had never signed it, had never met the Plaintiff's advocates, and that the signature on the document was a forgery. She testified that her sister, Syprosa was married to Aggrey Opang Onyango and not to Richard Onduru Bunde. She stated that their maiden family recognized Aggrey Opang as their brother-in-law and that they participated fully in her burial on the suit land in Migwena. She requested the court to reject the Plaintiff's claim to exhume her sister's remains.
16. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions.
17. It was submitted that the appeal was triggered by the decision of Honorable J. Nandi delivered in Bondo and was pursuant to the memorandum of appeal as filed before the court and as contained in the record of appeal. It was pointed out that at page 16 of the record of appeal was a document from the state bearing the picture of the 1st Respondent which clearly stated that he was the son of Onduru Richard Bunde and identified the clan as Kanyakwar and the family as Jokanyagudi. The Appellant noted that at the trial, it was established that the 1st Respondent was an adult of sound mind and disposition and argued that the starting point was a revelation that Onduru Richard Bunde and Syprose Auma Ogonda were not strangers to each other meaning any testimony along contrary lines must surely be false.
18. The Appellant stated that the court would be taken through the procedures of marriage that Onduru Richard Bunde undertook. It was argued that if the son of Syprose Auma Ogonda submitted information to the state listing the two as mother and father, it served as a corroboration of evidence that there was at the very least a possibility of the marriage; the Appellant intended to go further and show that it was not merely probable but indeed the reality. The Appellant raised the question of where a widow was to be buried questioning whether it was proper for the burial grounds to be in a foreign land clan-wise and asserted that it was improper as would be demonstrated. Reference was made to the passage contained in Genesis 2:23 which states that this is now bone of my bones and flesh of my flesh and she shall be called woman for out of man she was taken.
19. It was argued that the intimate relationship between a man and a woman transcends life and that Syprose Auma Ogonda did not stop being the widow to the late Onduru Richard Bunde. The Appellant contended that the rights and customary privileges were denied to the widow after her death and that the Respondents were to blame, adding that the record would show the evidence was sufficient to right the wrongs inflicted by the Respondents. In conclusion of the introduction, the Appellant invited the court to set aside the judgment delivered and challenged therein and instead proceed to grant the prayers in the amended plaint as prayed.
20. The Appellant submitted that the role of the court with regard to the present dispute was firmly established and shared a number of authorities to that effect. The court in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR was cited , where it was held that an appeal to that Court from a trial by the High Court is by way of retrial and the principles upon which the Court acts are well settled, meaning the court must reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it has neither seen nor heard the witnesses and making due allowances in that respect. The case of Peters v Sunday Post Ltd [1958] EA 424 was cited, which held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved or had plainly gone wrong, the appellate court will not hesitate so to decide. In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2018] eKLR the court was reminded of its primary role as a first appellate court namely to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
21. It was noted that the record of appeal was before the court as a mandatory document and the Appellant presumed that the court was confined to the record of appeal when determining the matter regarding what the issues were before the trial court. The concept of parties being bound by their pleadings was invoked given a number of issues raised by the Plaintiff that were not specifically responded to either in pleadings or cross-examination. In Galaxy Paints Company Limited v Falcon Guards Limited Court of Appeal Case Number 219 of 1998, it was cited that issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court's determination. The case of Libyan Arab Uganda Bank for Foreign Trade and Development & Anor v Adam Vassiliadis [1986] UG CA 1 was cited , where the Uganda Court of Appeal approved the dictum of Lord Denning in Jones v National Coal Board [1957] 2 QB 55 that in the system of trial evolved, the judge sits to hear and determine the issues raised by the parties not to conduct an investigation or examination on behalf of society at large.
22. The Appellant noted that the memorandum of appeal was contained at pages 5-6 of the record of appeal and broke it down into the following key issues for ease of submission:
i. Whether there was a marriage between Syprose Auma Ogonda and Bunde.
ii. Whether that marriage demanded that the widow be buried in line with the customs of the husband's community.
iii. Whether the dismissal of the suit was an error
23. On the issue of whether there was a marriage between Syprose Auma Ogonda and Bunde. The Appellant pointed out that their submissions at page 163 commenced with a summary of the evidence from Stephen Oyaro which was largely unchallenged. The Appellant re-submitted the same asserting that the evidence was not totally analyzed and the submissions were not wholly considered. It was argued that the defense, specifically the 1st and 2nd Respondents attempted to show that the late Syprose was married to Aggrey Opang but did very little to none to defend that position in the face of the obliteration of that narrative by Stephen Oyaro.
24. The Appellant directed attention to page 78 of the record of appeal, where Stephen Oyaro’s signed witness statement was located and adopted as his testimony.
25. Regarding his knowledge of the parties, it was reported that Oyaro informed the court at page 78 that he personally knew the Plaintiff's father Richard Bunde and considered him his brother (first cousin) in the loose African description of relations, making the Plaintiff his son and that they were close neighbors geographically at the Reru home.Regarding how culturally inclined the late Richard Bunde was, it was reported that Oyaro informed the court that the deceased was a man who proudly embraced African traditions and ways of life in almost everything he did, especially within his family life. On the question of how many wives Richard Bunde had, it was reported that Stephen Oyaro uncontestably informed the court at page 78 that Mr. Richard Bunde had two wives, namely Syprose Adhiambo and Syprose Ogonda and that he had a good relationship with them as his in-laws ( "yuochena" ).
26. Regarding whether Syprose Ogonda was properly married, the witness Stephen Oyaro informed the court at page 78 that all the necessary and mandatory requirements leading to the marriage between Richard Bunde and Syprosa were later performed and that he participated in the said processes, key of which was the payment of dowry ( nyombo ) to their in-laws in Uyoma. h) It was noted that at page 79 of the record of appeal, the witness Stephen Oyaro went into detail regarding the livestock that were procured and how they were delivered and accepted by the in-laws clearly demonstrating marriage. On the role Syprosa played upon the death of Richard Bunde, page 80 provided the answer where Stephen Oyaro informed the court that in the year 2008 when Richard Bunde died, Syprosa was at the center of the funeral preparations and took her place as the widow. He added that the Uyoma in-laws also attended the funeral in support of the family and their daughter and that he was present at the funeral where he saw Syprosa Ogonda performing the rite of burying the husband.
27. The Appellant submitted that the cross-examination of this witness at page 200 of the record of appeal did not impeach the evidence adduced. The second witness analyzed was Aggrey Baston, whose primary witness statement at page 82 confirmed that all necessary and mandatory requirements leading to the marriage between Richard Bunde and Syprosa were performed and that he participated in the said processes, key of which was the payment of dowry ( Nyombo ) to his in-laws in Uyoma.
28. It was reported that Aggrey Baston indicated the dowry was taken to Syprosa's home and accepted with the symbolic act of returning the ropes that tied the livestock. At page 83, he informed the court that after being served food and drinks, they were given back the three (3) ropes used to tie the livestock to return with and they set off back to Seme via public transport. The ropes were handed over in the mother-in-law's house in the presence of Syprosa, her mother and an elderly man (uncle) standing in for Syprosa's father and were subsequently handed over to Mr. Bunde at home. It was further noted from the witness that a delegation left for Uyoma the next day after the dowry was accepted and that Syprosa became part and parcel of the community.
29. The Appellant stated that Amos Oyier Ondeje Anyango through his witness statement dated 16th March 2023 provided crucial and unchallenged insights supplying information that definitely showed Syprosa was married to Richard Bunde and not Aggrey Opang. It was argued that if there was a suggestion that Syprosa was in multiple relationships at one time, Oyier clearly showed she chose Richard Bunde, stating in his statement within the further supplementary record of appeal that in late 1998, Syprosa's husband came from Kisumu with a truck to collect her household belongings with the intention of relocating her and the children to Kisumu. The items were removed from the servant's quarters and she effectively moved from the compound in the presence of both Aggrey and the witness who even helped load the goods into the truck at around 11:00 AM.
30. It was noted that Oyier further testified that the last he heard of Syprosa Ogonda was when she passed away in 2013 and that one of Aggrey Opang's stepbrothers, Alexander Oyier and Emily Ondeje strangely spearheaded a conspiracy with Syprosa's son Edgar Ochieng Onduru to take her body to Opang's father's home at Wagusu in Bondo against the wishes of the larger Simeone Onyango family. This was strongly contested by some family members especially Stephen Juma Onyango who sought court orders to stop the burial.
31. Regarding the marital status of Aggrey Opang, Oyier stated that to his knowledge, Aggrey Opang died a bachelor and was never married least of all to Syprosa Ogonda. The Appellant argued that the proponent of the narrative that Syprosa was married to Aggrey came from an individual claiming to be her brother but who provided no proof of being a sibling. It was asserted that this individual was talented on generalities and clueless on particulars as confirmed by Lawrence Ogonda at page 204 of the record where he admitted failing to indicate details in his witness statement. The Appellant asked that this be compared to the Plaintiff's detailed evidence regarding dowry and customary processes.
32. It was argued that the evidence of Jane Atieno Otenda was largely contradictory given she was initially set to testify for the claimant but switched sides to the defendants. However, it was noted she told the truth on one item at page 205, testifying that she knew Richard Ondiri Bunde and that they went to his home for a vacation from Nairobi. The Appellant submitted that the narrative has always been that Syprosa was married to either Richard Bunde or Aggrey Opang and here it was learned that the household would leave Nairobi for Bunde's home and that he picked the family from Nairobi to his home in Kisumu. It was argued that obituaries within Aggrey Opang's home painted the picture that Syprosa was not a family member, which was an issue even when Aggrey Opang was alive.
33. The Appellant questioned whether Aggrey Opang was aware post-humously that he was married to Syprosa. It was argued that Edgar Marvin Ochieng Onduru, when unbiased acknowledged that Richard Bunde was married to his mother, and that page 17 of the record of appeal served as sufficient evidence of this. The Appellant questioned why Aggrey's wife would proceed on vacation to Richard Bunde's house describing the inconsistencies in the defense evidence as obvious and apparent. Attention was directed to page 88 for a further witness statement that was clear on the evidence and relations of the parties. It was submitted that evidence of a marriage between Aggrey and Syprosa was non-existent noting that at page 204 the witness confirmed he had not stated the word dowry in his statement.
34. The witness further stated that he did not mention what comprised the paid dowry and that the year of payment did not come to mind when recording the statement. On the question of whether Aggrey was married to Syprosa, the Appellant described the 3rd Defendant as a reliable and consistent witness. At page 206, the witness testified that Edgar Marvin Ondiri was not a son to his late brother, that he could not be a party to the burial planning because Syprosa was not married to his brother Aggrey, that Aggrey did not pay bride price to Syprosa and that Aggrey was his younger brother, an employee in his firm and did not have a wife.
35. Regarding Aggrey's own words on Syprosa's marital status, it was recorded at page 207 that Aggrey told him Syprosa was married and her husband was staying in Kisumu. The Appellant submitted that this evidence was in tandem with that of Amos noting that the 1st Defendant was part of the family when Richard Bunde went to collect them from Nairobi to Kisumu and no word of protest had come from him regarding that narrative.
36. The Appellant commented that the affidavit offered zero value to the subject matter. It was argued that it was not authenticated through a handwriting expert nor was the law firm in question called to authenticate that it was drawn by them and signed by the very Syprose who was the subject of the proceedings. The Appellant questioned what alternative evidence led the court to disregard the evidence from witnesses who testified to the issue of bride price paid by Richard Bunde. It was submitted that evidence from the parties including the 1st Defendant showed a relationship between Syprose and Richard that supported the narrative of a marriage between them.
37. The Appellant argued that the narrative driven by the defense had zero basis in fact and law and there was no evidence to suggest Syprosa was ever married to Aggrey Opang. It was submitted that the defense, while alleging a marriage was at pains to describe it and failed to satisfy that there was indeed any marriage between the two. The aspect of bride price was described as extremely important to any African customary marriage, a burden the Plaintiff discharged regarding the bride price paid by Bunde's family.
38. The case of K.O & Another v J.O (2018) eKLR was cited, where Mrima J, in dismissing the existence of a marriage held that marriage must be distinguished from a sexual relationship resulting in siring children and held that there was no marriage between the deceased and the respondent whether by statute, customs or the doctrine of presumption of marriage. The Appellant stated that the determination of the existence of the marriage must also be based on the satisfaction of Section 43 of the Marriage Act which provides that a marriage under this part shall be celebrated in accordance with the customs of the communities of one or both parties and that where the payment of dowry is required, a token amount shall be sufficient to prove it.
39. The court in Kimani v Gikanga (1965) EA 735 was cited observing that customary law must be accurately and definitely established and the onus to do so must be on the party who puts forward customary law by calling evidence to prove the custom and relevant facts. It was argued that the dictates of custom were not in play as an issue because all parties appeared to have agreed on what the customs were and whether they were applicable. In BCC v JMG [2018] eKLR, Justice Majanja held that attendance of a funeral did not amount to recognition of a marriage but was evidence that the parties were cohabiting at the time and were in some relationship. The court in In re Estate of Daniel Olal Nyawawa (Deceased) [2019] eKLR was cited describing the rituals ( Yedo Chego ) that signify the cementing of a relationship when a girl moves to her new home. The court also observed that customary law is a fact needing proof and cannot be presumed citing Mwagiru v Mumbi (1967) E.A. 639 and Titus & Another v Nangurai. The Appellant argued that the trial court was taken through the rituals that the marriage between Bunde and Syprosa underwent without any rebuttals from the defense, questioning how this evidence was disregarded. Rawal (J) in Re: Estate of Wakaba (2008) 1 KLR (G&F) pg 328 was cited, which held that customary law should be interpreted with flexibility and breadth of view and that even where parties fail to fulfill all strict ingredients, a court may nevertheless find that a valid marriage exists. The Appellant submitted that a flexible interpretation of Luo customary laws could only lead to the definite conclusion that a valid marriage existed between Bunde and Syprosa based on the evidence. It was argued that the 1st and 2nd Defendant's own witnesses confirmed they carried themselves as husband and wife and the testimony from Jane Atieno Otenda regarding visiting Mr. Bunde's residence confirmed a relationship.
40. It was noted the 1st Defendant presented himself as the son of Mr. Bunde and Syprosa Atieno against the backdrop of a marriage between the parents as contained in the registration details.
41. The Appellant offered the narrative to show there was never a claim that Aggrey was married to Syprosa, highlighting the following from the cross-examined evidence of Amos Oyier Ondeje Onyango; That he started working in Nairobi around 1990 and shared a one-room residential accommodation with close relative Aggrey Opang Onyango. That in 1992, a lady named Syprosa Ogonda frequently visited a neighbor named Eunice Adhiambo hawking wines and spirits obtained from AFCO facilities where she worked. That they later learned Syprosa was staying in Buruburu Phase 1 and she sometimes invited them to buy drinks introducing her two children, Marvin Ochieng Onduru and Shalot Onduru. That he knew Syprosa was married to a man in Kisumu Nyalenda according to her own introduction and that the witness later moved to Dandora but kept frequent visits to Aggrey in Kariobangi South.
42. It was argued that the testimony clearly showed Syprosa fell on
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1. This is a first appeal arising from the Judgment and Decree of the Bondo Senior Principal Magistrate’s Court in Civil Case No. E59B of 2022 delivered on 17th December 2024. The trial court dismissed the Appellant's suit with costs to the 1st and 2nd Respondents finding that the Appellant had failed to prove the existence of a customary marriage between the deceased, Syprosa Auma Ogonda (hereinafter "the Deceased"), and the Appellant's late father Richard Onduru Bunde.
2. Aggrieved by the wholesale decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 2 nd April 2025 wherein they raised the following grounds of appeal namely; -
a) THAT the trial court failed to properly evaluate the evidence adduced on the issue of dowry as evidenced by the plaintiff's witnesses arriving at the wrong conclusion and an error in both fact and law.
b) THAT the trial court failed to consider and analyse the plaintiff's submissions resulting in a reversible error in fact.
c) THAT the trial court failed to analyse the evidence as adduced thereby resulting in the dismissal of the suit a reversible error.
d) THAT the trial court failed to establish the unrebutted testimony from the plaintiffs witnesses an error in fact.
e) THAT the trial court failed to consider the 3rd defendants testimony and documents collaborated the plaintiff's evidence on the key issues at trial thereby an error in both fact and law.
f) THAT the trial court failed to analyse the evidence in totality resulting in the wrong finding that there was no marriage between Bunde and Syprose thereby resulting in dismissal of the suit an error in fact.
3. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123.
4. The dispute centers on the marital status of the Deceased who passed away on 24th February 2013 and was interred shortly thereafter on land parcel SOUTH SAKWA/MIGWENA/13.
5. The Appellant suing as the legal representative of the Estate of Richard Onduru Bunde asserts that the Deceased was his stepmother and was lawfully married to his father under Luo Customary Law. Consequently, he contends her burial on the disputed land belonging to the family of the late Aggrey Opang Onyango was culturally offensive and unlawful. He prayed for declarations of marriage, a mandatory order for exhumation and reburial at Nyalenda, Kolwa West within Kisumu County next to his father's grave.
6. 1 st Defendant (the biological firstborn son of the deceased) and the 2 nd Defendant (brother to the late Aggrey Opang Onyango) strongly opposed the suit. They asserted that the deceased was never married to anyone else except Aggrey Opang Onyango. They produced a sworn Affidavit of Marriage executed by Syprosa herself in 2006 confirming this marriage. They stated that she was buried lawfully according to cultural norms on her husband’s family land where her biological children and family had no issue with her resting place.
7. The 3 rd Defendant (another brother of Aggrey Opang) supported the Plaintiff. He testified that his late brother Aggrey was never married to Syprosa that he had previously obtained a High Court injunction in 2013 to stop the burial (which was overtaken by events before service) and agreed that her burial on the suit land had no cultural basis.
8. In a judgment delivered on 17th December 2024, the trial Magistrate (Hon. J.P. Nandi) dismissed the Plaintiff's suit in its entirety.
9. Patrick Omondi Bunde (PW1) ,The witness testified that he was the Plaintiff in the case and a resident of Kolwa, Kisumu County. He stated that his late father, Richard Onduru Bunde had married the deceased, Syprosa Auma Ogonda as his second wife under Luo customary law. He testified that the deceased passed away on 24th February 2013 and was subsequently buried on land parcel South Sakwa/Migwena/1346. He asserted that the land belonged to the family of the late Aggrey Opang Onyango to whom the deceased was never married. He testified that his father died on 31st August 2008 and was buried in Nyalenda, Kolwa West. He informed the court that the deceased should be exhumed and reburied next to his father’s grave in Nyalenda as keeping her buried on the 1st Defendant’s family land was a taboo under Luo customs. Under cross-examination, the witness admitted that he did not produce any marriage certificate or dowry agreement to prove the marriage between his father and the deceased. He further admitted that the name of the deceased Syprosa was completely omitted from his father’s funeral program and obituary in 2008 as one of his surviving wives. He admitted that he had not visited the deceased when she was hospitalized in Nairobi in 2004 and that he only found out about her death in 2013 long after she had already been buried.
10. John Okeyo Bunde (PW2), The witness testified that he was the paternal uncle of the Plaintiff. He stated that he was present when negotiations for the customary marriage between Richard Onduru Bunde and Syprosa Auma Ogonda took place. He testified that their family paid three head of cattle and a goat as dowry to the deceased’s family in Gem. He asserted that the deceased lived with Richard Bunde as his wife and that they had children together. Under cross-examination, the witness admitted that he was a young boy at the time the alleged dowry negotiations took place and did not actively participate in the discussions. He admitted that he had no written receipt or customary agreement showing that the livestock was handed over or accepted by the deceased’s family.
11. Caleb Ochola (PW3), The witness testified that he was a relative of the Bunde family and a resident of Nyalenda. He stated that he knew Syprosa Auma Ogonda as the second wife of Richard Onduru Bunde. He testified that he assisted in driving the dowry animals to the home of the deceased’s parents in Gem. He stated that to his knowledge the deceased was never married to Aggrey Opang Onyango. Under cross-examination, the witness admitted that he could not remember the exact year the animals were driven to Gem. He also conceded that he was not present inside the house when the dowry negotiations were being concluded and could not verify who signed the customary agreements if any existed.
12. Edgar Marvin Ochieng Onduru (DW1) The witness testified that he was the 1st Defendant and the biological firstborn son of the deceased, Syprosa Auma Ogonda. He stated that his mother was lawfully married to the late Aggrey Opang Onyango. He testified that they lived together as a family on land parcel South Sakwa/Migwena/1346 which was his late father’s family land. He produced a certified copy of a sworn Affidavit of Marriage executed by his late mother in the year 2006 in which she explicitly declared that she was married to Aggrey Opang Onyango. He testified that his mother was buried peacefully on 9th March 2013 on her matrimonial home with the consent of her children, her maiden family and local elders. He stated that the Plaintiff’s suit was motivated by malice and a desire to interfere with their family land. Under cross-examination, the witness denied that his mother was ever married to Richard Onduru Bunde. He stated that his mother never lived in Nyalenda, Kisumu and that her children had always recognized Aggrey Opang Onyango as their father.
13. Alexander Oyier Onyango (DW2), The witness testified that he was the 2nd Defendant and a brother to the late Aggrey Opang Onyango. He stated that the suit land South Sakwa/Migwena/1346 belonged to their late father and that Aggrey Opang was entitled to a portion of it. He testified that Syprosa Auma Ogonda lived on the land as Aggrey's wife and that she constructed her home ( ligala ) there. He testified that upon her death in February 2013, the family of Aggrey Opang and the deceased’s maiden family coordinated her burial and she was laid to rest in accordance with Luo customs on her husband’s land. Under cross-examination, the witness maintained that the 3rd Defendant Stephen Juma Onyango was acting out of family malice in supporting the Plaintiff. He testified that the 3rd Defendant’s previous attempt to stop the burial in 2013 via a High Court injunction was dismissed and overtaken by events
14. Stephen Juma Onyango (DW3), The witness testified that he was the 3rd Defendant and a brother to the late Aggrey Opang Onyango. He testified in support of the Plaintiff's case. He stated that his late brother Aggrey was never married to Syprosa Auma Ogonda and that she had no right to be buried on land parcel South Sakwa/Migwena/1346. He testified that in March 2013, he had filed a suit at the High Court in Kisumu and obtained an injunction to stop her burial but the 1st and 2nd Defendants rushed and buried her before the order could be served. He agreed that her remains should be exhumed and moved to her rightful husband’s home in Kisumu. Under cross-examination, the witness admitted that he did not live on the suit land and had been in a long-standing land dispute with his brothers. He admitted that the deceased’s biological children did not support the exhumation and wished for their mother to remain buried where she was.
15. Jane Atieno Otenda (DW4), The witness testified that she was the biological sister of the deceased, Syprosa Auma Ogonda. She testified that she was surprised to find her name listed as a witness for the Plaintiff in the case. She categorically disowned the witness statement filed under her name by the Plaintiff’s advocates stating that she had never signed it, had never met the Plaintiff's advocates, and that the signature on the document was a forgery. She testified that her sister, Syprosa was married to Aggrey Opang Onyango and not to Richard Onduru Bunde. She stated that their maiden family recognized Aggrey Opang as their brother-in-law and that they participated fully in her burial on the suit land in Migwena. She requested the court to reject the Plaintiff's claim to exhume her sister's remains.
16. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions.
17. It was submitted that the appeal was triggered by the decision of Honorable J. Nandi delivered in Bondo and was pursuant to the memorandum of appeal as filed before the court and as contained in the record of appeal. It was pointed out that at page 16 of the record of appeal was a document from the state bearing the picture of the 1st Respondent which clearly stated that he was the son of Onduru Richard Bunde and identified the clan as Kanyakwar and the family as Jokanyagudi. The Appellant noted that at the trial, it was established that the 1st Respondent was an adult of sound mind and disposition and argued that the starting point was a revelation that Onduru Richard Bunde and Syprose Auma Ogonda were not strangers to each other meaning any testimony along contrary lines must surely be false.
18. The Appellant stated that the court would be taken through the procedures of marriage that Onduru Richard Bunde undertook. It was argued that if the son of Syprose Auma Ogonda submitted information to the state listing the two as mother and father, it served as a corroboration of evidence that there was at the very least a possibility of the marriage; the Appellant intended to go further and show that it was not merely probable but indeed the reality. The Appellant raised the question of where a widow was to be buried questioning whether it was proper for the burial grounds to be in a foreign land clan-wise and asserted that it was improper as would be demonstrated. Reference was made to the passage contained in Genesis 2:23 which states that this is now bone of my bones and flesh of my flesh and she shall be called woman for out of man she was taken.
19. It was argued that the intimate relationship between a man and a woman transcends life and that Syprose Auma Ogonda did not stop being the widow to the late Onduru Richard Bunde. The Appellant contended that the rights and customary privileges were denied to the widow after her death and that the Respondents were to blame, adding that the record would show the evidence was sufficient to right the wrongs inflicted by the Respondents. In conclusion of the introduction, the Appellant invited the court to set aside the judgment delivered and challenged therein and instead proceed to grant the prayers in the amended plaint as prayed.
20. The Appellant submitted that the role of the court with regard to the present dispute was firmly established and shared a number of authorities to that effect. The court in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR was cited , where it was held that an appeal to that Court from a trial by the High Court is by way of retrial and the principles upon which the Court acts are well settled, meaning the court must reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it has neither seen nor heard the witnesses and making due allowances in that respect. The case of Peters v Sunday Post Ltd [1958] EA 424 was cited, which held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved or had plainly gone wrong, the appellate court will not hesitate so to decide. In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2018] eKLR the court was reminded of its primary role as a first appellate court namely to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
21. It was noted that the record of appeal was before the court as a mandatory document and the Appellant presumed that the court was confined to the record of appeal when determining the matter regarding what the issues were before the trial court. The concept of parties being bound by their pleadings was invoked given a number of issues raised by the Plaintiff that were not specifically responded to either in pleadings or cross-examination. In Galaxy Paints Company Limited v Falcon Guards Limited Court of Appeal Case Number 219 of 1998, it was cited that issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court's determination. The case of Libyan Arab Uganda Bank for Foreign Trade and Development & Anor v Adam Vassiliadis [1986] UG CA 1 was cited , where the Uganda Court of Appeal approved the dictum of Lord Denning in Jones v National Coal Board [1957] 2 QB 55 that in the system of trial evolved, the judge sits to hear and determine the issues raised by the parties not to conduct an investigation or examination on behalf of society at large.
22. The Appellant noted that the memorandum of appeal was contained at pages 5-6 of the record of appeal and broke it down into the following key issues for ease of submission:
i. Whether there was a marriage between Syprose Auma Ogonda and Bunde.
ii. Whether that marriage demanded that the widow be buried in line with the customs of the husband's community.
iii. Whether the dismissal of the suit was an error
23. On the issue of whether there was a marriage between Syprose Auma Ogonda and Bunde. The Appellant pointed out that their submissions at page 163 commenced with a summary of the evidence from Stephen Oyaro which was largely unchallenged. The Appellant re-submitted the same asserting that the evidence was not totally analyzed and the submissions were not wholly considered. It was argued that the defense, specifically the 1st and 2nd Respondents attempted to show that the late Syprose was married to Aggrey Opang but did very little to none to defend that position in the face of the obliteration of that narrative by Stephen Oyaro.
24. The Appellant directed attention to page 78 of the record of appeal, where Stephen Oyaro’s signed witness statement was located and adopted as his testimony.
25. Regarding his knowledge of the parties, it was reported that Oyaro informed the court at page 78 that he personally knew the Plaintiff's father Richard Bunde and considered him his brother (first cousin) in the loose African description of relations, making the Plaintiff his son and that they were close neighbors geographically at the Reru home.Regarding how culturally inclined the late Richard Bunde was, it was reported that Oyaro informed the court that the deceased was a man who proudly embraced African traditions and ways of life in almost everything he did, especially within his family life. On the question of how many wives Richard Bunde had, it was reported that Stephen Oyaro uncontestably informed the court at page 78 that Mr. Richard Bunde had two wives, namely Syprose Adhiambo and Syprose Ogonda and that he had a good relationship with them as his in-laws ( "yuochena" ).
26. Regarding whether Syprose Ogonda was properly married, the witness Stephen Oyaro informed the court at page 78 that all the necessary and mandatory requirements leading to the marriage between Richard Bunde and Syprosa were later performed and that he participated in the said processes, key of which was the payment of dowry ( nyombo ) to their in-laws in Uyoma. h) It was noted that at page 79 of the record of appeal, the witness Stephen Oyaro went into detail regarding the livestock that were procured and how they were delivered and accepted by the in-laws clearly demonstrating marriage. On the role Syprosa played upon the death of Richard Bunde, page 80 provided the answer where Stephen Oyaro informed the court that in the year 2008 when Richard Bunde died, Syprosa was at the center of the funeral preparations and took her place as the widow. He added that the Uyoma in-laws also attended the funeral in support of the family and their daughter and that he was present at the funeral where he saw Syprosa Ogonda performing the rite of burying the husband.
27. The Appellant submitted that the cross-examination of this witness at page 200 of the record of appeal did not impeach the evidence adduced. The second witness analyzed was Aggrey Baston, whose primary witness statement at page 82 confirmed that all necessary and mandatory requirements leading to the marriage between Richard Bunde and Syprosa were performed and that he participated in the said processes, key of which was the payment of dowry ( Nyombo ) to his in-laws in Uyoma.
28. It was reported that Aggrey Baston indicated the dowry was taken to Syprosa's home and accepted with the symbolic act of returning the ropes that tied the livestock. At page 83, he informed the court that after being served food and drinks, they were given back the three (3) ropes used to tie the livestock to return with and they set off back to Seme via public transport. The ropes were handed over in the mother-in-law's house in the presence of Syprosa, her mother and an elderly man (uncle) standing in for Syprosa's father and were subsequently handed over to Mr. Bunde at home. It was further noted from the witness that a delegation left for Uyoma the next day after the dowry was accepted and that Syprosa became part and parcel of the community.
29. The Appellant stated that Amos Oyier Ondeje Anyango through his witness statement dated 16th March 2023 provided crucial and unchallenged insights supplying information that definitely showed Syprosa was married to Richard Bunde and not Aggrey Opang. It was argued that if there was a suggestion that Syprosa was in multiple relationships at one time, Oyier clearly showed she chose Richard Bunde, stating in his statement within the further supplementary record of appeal that in late 1998, Syprosa's husband came from Kisumu with a truck to collect her household belongings with the intention of relocating her and the children to Kisumu. The items were removed from the servant's quarters and she effectively moved from the compound in the presence of both Aggrey and the witness who even helped load the goods into the truck at around 11:00 AM.
30. It was noted that Oyier further testified that the last he heard of Syprosa Ogonda was when she passed away in 2013 and that one of Aggrey Opang's stepbrothers, Alexander Oyier and Emily Ondeje strangely spearheaded a conspiracy with Syprosa's son Edgar Ochieng Onduru to take her body to Opang's father's home at Wagusu in Bondo against the wishes of the larger Simeone Onyango family. This was strongly contested by some family members especially Stephen Juma Onyango who sought court orders to stop the burial.
31. Regarding the marital status of Aggrey Opang, Oyier stated that to his knowledge, Aggrey Opang died a bachelor and was never married least of all to Syprosa Ogonda. The Appellant argued that the proponent of the narrative that Syprosa was married to Aggrey came from an individual claiming to be her brother but who provided no proof of being a sibling. It was asserted that this individual was talented on generalities and clueless on particulars as confirmed by Lawrence Ogonda at page 204 of the record where he admitted failing to indicate details in his witness statement. The Appellant asked that this be compared to the Plaintiff's detailed evidence regarding dowry and customary processes.
32. It was argued that the evidence of Jane Atieno Otenda was largely contradictory given she was initially set to testify for the claimant but switched sides to the defendants. However, it was noted she told the truth on one item at page 205, testifying that she knew Richard Ondiri Bunde and that they went to his home for a vacation from Nairobi. The Appellant submitted that the narrative has always been that Syprosa was married to either Richard Bunde or Aggrey Opang and here it was learned that the household would leave Nairobi for Bunde's home and that he picked the family from Nairobi to his home in Kisumu. It was argued that obituaries within Aggrey Opang's home painted the picture that Syprosa was not a family member, which was an issue even when Aggrey Opang was alive.
33. The Appellant questioned whether Aggrey Opang was aware post-humously that he was married to Syprosa. It was argued that Edgar Marvin Ochieng Onduru, when unbiased acknowledged that Richard Bunde was married to his mother, and that page 17 of the record of appeal served as sufficient evidence of this. The Appellant questioned why Aggrey's wife would proceed on vacation to Richard Bunde's house describing the inconsistencies in the defense evidence as obvious and apparent. Attention was directed to page 88 for a further witness statement that was clear on the evidence and relations of the parties. It was submitted that evidence of a marriage between Aggrey and Syprosa was non-existent noting that at page 204 the witness confirmed he had not stated the word dowry in his statement.
34. The witness further stated that he did not mention what comprised the paid dowry and that the year of payment did not come to mind when recording the statement. On the question of whether Aggrey was married to Syprosa, the Appellant described the 3rd Defendant as a reliable and consistent witness. At page 206, the witness testified that Edgar Marvin Ondiri was not a son to his late brother, that he could not be a party to the burial planning because Syprosa was not married to his brother Aggrey, that Aggrey did not pay bride price to Syprosa and that Aggrey was his younger brother, an employee in his firm and did not have a wife.
35. Regarding Aggrey's own words on Syprosa's marital status, it was recorded at page 207 that Aggrey told him Syprosa was married and her husband was staying in Kisumu. The Appellant submitted that this evidence was in tandem with that of Amos noting that the 1st Defendant was part of the family when Richard Bunde went to collect them from Nairobi to Kisumu and no word of protest had come from him regarding that narrative.
36. The Appellant commented that the affidavit offered zero value to the subject matter. It was argued that it was not authenticated through a handwriting expert nor was the law firm in question called to authenticate that it was drawn by them and signed by the very Syprose who was the subject of the proceedings. The Appellant questioned what alternative evidence led the court to disregard the evidence from witnesses who testified to the issue of bride price paid by Richard Bunde. It was submitted that evidence from the parties including the 1st Defendant showed a relationship between Syprose and Richard that supported the narrative of a marriage between them.
37. The Appellant argued that the narrative driven by the defense had zero basis in fact and law and there was no evidence to suggest Syprosa was ever married to Aggrey Opang. It was submitted that the defense, while alleging a marriage was at pains to describe it and failed to satisfy that there was indeed any marriage between the two. The aspect of bride price was described as extremely important to any African customary marriage, a burden the Plaintiff discharged regarding the bride price paid by Bunde's family.
38. The case of K.O & Another v J.O (2018) eKLR was cited, where Mrima J, in dismissing the existence of a marriage held that marriage must be distinguished from a sexual relationship resulting in siring children and held that there was no marriage between the deceased and the respondent whether by statute, customs or the doctrine of presumption of marriage. The Appellant stated that the determination of the existence of the marriage must also be based on the satisfaction of Section 43 of the Marriage Act which provides that a marriage under this part shall be celebrated in accordance with the customs of the communities of one or both parties and that where the payment of dowry is required, a token amount shall be sufficient to prove it.
39. The court in Kimani v Gikanga (1965) EA 735 was cited observing that customary law must be accurately and definitely established and the onus to do so must be on the party who puts forward customary law by calling evidence to prove the custom and relevant facts. It was argued that the dictates of custom were not in play as an issue because all parties appeared to have agreed on what the customs were and whether they were applicable. In BCC v JMG [2018] eKLR, Justice Majanja held that attendance of a funeral did not amount to recognition of a marriage but was evidence that the parties were cohabiting at the time and were in some relationship. The court in In re Estate of Daniel Olal Nyawawa (Deceased) [2019] eKLR was cited describing the rituals ( Yedo Chego ) that signify the cementing of a relationship when a girl moves to her new home. The court also observed that customary law is a fact needing proof and cannot be presumed citing Mwagiru v Mumbi (1967) E.A. 639 and Titus & Another v Nangurai. The Appellant argued that the trial court was taken through the rituals that the marriage between Bunde and Syprosa underwent without any rebuttals from the defense, questioning how this evidence was disregarded. Rawal (J) in Re: Estate of Wakaba (2008) 1 KLR (G&F) pg 328 was cited, which held that customary law should be interpreted with flexibility and breadth of view and that even where parties fail to fulfill all strict ingredients, a court may nevertheless find that a valid marriage exists. The Appellant submitted that a flexible interpretation of Luo customary laws could only lead to the definite conclusion that a valid marriage existed between Bunde and Syprosa based on the evidence. It was argued that the 1st and 2nd Defendant's own witnesses confirmed they carried themselves as husband and wife and the testimony from Jane Atieno Otenda regarding visiting Mr. Bunde's residence confirmed a relationship.
40. It was noted the 1st Defendant presented himself as the son of Mr. Bunde and Syprosa Atieno against the backdrop of a marriage between the parents as contained in the registration details.
41. The Appellant offered the narrative to show there was never a claim that Aggrey was married to Syprosa, highlighting the following from the cross-examined evidence of Amos Oyier Ondeje Onyango; That he started working in Nairobi around 1990 and shared a one-room residential accommodation with close relative Aggrey Opang Onyango. That in 1992, a lady named Syprosa Ogonda frequently visited a neighbor named Eunice Adhiambo hawking wines and spirits obtained from AFCO facilities where she worked. That they later learned Syprosa was staying in Buruburu Phase 1 and she sometimes invited them to buy drinks introducing her two children, Marvin Ochieng Onduru and Shalot Onduru. That he knew Syprosa was married to a man in Kisumu Nyalenda according to her own introduction and that the witness later moved to Dandora but kept frequent visits to Aggrey in Kariobangi South.
42. It was argued that the testimony clearly showed Syprosa fell on
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