REPUBLIC OF KENYA

THE MAGISTRATE’S COURT AT UKWALA

BURIAL DISPUTE CASE
MCCC/E013/2025
LYDIA ANYANGO OTIENO….…….……………………………………...…… PLAINTIFF
-VERSUS-
MARGARET ATIENO OMONDI………………………………………..…… DEFENDANT
AND
CAROLINE ANYANGO………………………………………..... 1ST INTERESTED PARTY
SAME DAY CLASSMATES FUNERAL PARLOUR …………. 2ND INTERESTED PARTY

PLAINTIFF’S WRITTEN SUBMISSIONS

May it please this Honourable Court,

INTRODUCTION
“Let the dead bury their dead,” the Scriptures declare (Luke 9:60). Yet, where the living wage
battle over the final resting place of the departed, this Honourable Court must intervene,
not to uphold hollowed rituals or vest control in the cunning, but to vindicate the wishes
of the deceased and uphold the sanctity of law and justice.

These submissions are respectfully tendered on behalf of the Plaintiff herein, seeking
orders to be granted the right to inter her late husband, Michael Otieno Demba
(hereinafter referred to as “the deceased”), at their matrimonial home located on land
parcel NORTH UGENYA/SEGA/5524, in accordance with the express instructions of the
deceased.

The Defendant (mother of the deceased) and the 1st Interested Party (the estranged first
wife) have jointly opposed this prayer, invoking vague customary practices and ulterior
interests camouflaged as moral entitlement. Their contestation lacks both legal
foundation and moral legitimacy.

UNDISPUTED FACTS
From the totality of the pleadings, Affidavits on record, and the oral testimonies adduced
before this Honourable Court, the following material facts emerge as uncontroverted.
These facts, as pleaded and substantiated, stand unshaken and should inform the just
determination of this matter:
Firstly, it is not in dispute that the Plaintiff is the deceased’s customary second wife,
having cohabited with him continuously from the year 2011 until the time of his demise.
Their union was blessed with three children, whose upbringing and welfare were
mutually undertaken by the Plaintiff and the Deceased within the matrimonial setting.

Secondly, the deceased resided exclusively and uninterruptedly at the Plaintiff’s

homestead for a continuous period exceeding fourteen (14) years preceding his death.
That homestead, located on parcel number NORTH UGENYA/SEGA/5524, constituted
his acknowledged and established matrimonial home.

Thirdly, it is common ground that the Deceased authored, in his own handwriting, a
testamentary note dated the 2nd day of May 2019, wherein he unequivocally stipulated
that his burial ought to be conducted at the said homestead and expressly designated the
Plaintiff, together with their children, as the persons vested with the authority to execute
and oversee his final rites.

Fourthly, notwithstanding the existence of the said written testament and interim
injunctive orders issued by this Honourable Court prohibiting the burial of the Deceased,
the Defendant proceeded with funeral preparations in blatant and contumacious defiance
of lawful authority, thereby undermining the dignity of the Court and the express wishes
of the deceased.

Lastly, it is not denied that the 1st Interested Party had long ceased to stay with the
deceased, their union having effectively broken down. In consonance with Luo
customary practices, the deceased signified the dissolution of their marriage by
physically demolishing the house that had formerly been allocated to the said Interested
Party, a customary act symbolizing finality in the severance of conjugal ties.

ISSUE(S) FOR DETERMINATION

1. Whether the Plaintiff merits the prayers sought?

ANALYSIS

In Kenya, to resolve burial disputes, the courts have variously resorted to customary law,
common law, marriage law, succession law, human rights law, land law and other bodies
of personal law. Customary law is applied by dint of section 3 (2) of the Judicature Act that
provides that: -
“The High Court, the Court of Appeal and all subordinate courts shall be guided by African
customary law in civil cases in which one or more of the parties is subject to it or affected by it, so
far as it is applicable and is not repugnant to justice and morality or inconsistent with any written
law, and shall decide all such cases according to substantial justice without undue regard to
technicalities of procedure and without undue delay.”
To prove custom, by section 51 of the Evidence Act, evidence of its existence must be called
to provide the juridical and philosophical basis. That was the ratio decidedi in Nyariba
Nyankomba vs. Mary Bonareri Munge [2010] eKLR where the High Court said that:
“Time and again, it has been stated that in cases resting purely on customary law it is absolutely
necessary that experts versed in the customs be summoned to testify so as to assist the court reach
a fair verdict since the court itself is not well versed in those customs and traditions. In absence of
such expert testimony, there can only be one conclusion, that such claims remain unproved”.

Apart from these factors, courts have also been unanimous as far as we can tell from
decided cases that, both laws, common and customary, have one thing in common, in so
far as burial is concerned; that the wishes of the deceased, though not binding, must so
far as is possible, be given effect, so long as those wishes are not contrary to custom or to
the general law or policy. See Apeli vs. Buluku [1980] e KLR and Samuel Mungai Mucheru
& 3 Others vs. Ann Nyathira [2014] e KRL.

The wishes or a will on how the deceased’s remains will be disposed of upon death are
not, as a general rule binding because, in the first place, there is no property in a dead
body and secondly, because a dead person cannot take part in the decision of his or her
own burial. There must, however, be compelling reasons for not heeding the expressed
wishes of the deceased.

In Mwashi v Mwashi (Civil Appeal E017 of 2022) [2022] KEHC 12276 (KLR), the Court held:
To this Court the trial Court was in law and under the doctrines of stare decisis bound to follow
the decision of the Court of Appeal in SAN –vs- GW (Supra) that the wishes of the deceased,
though not binding, must, so far as possible, be given effect provided the same are not contrary to
the customs of the community he hails from.

The Defendant and the 1st Interested Party have intimated an intention to rely on Luo
customary law to justify their position; however, they have failed to adduce competent
expert evidence to establish the existence, content, and applicability of such customs. The
witnesses presented by the said parties merely alleged familiarity with Luo customs but
did not furnish this Honourable Court with any verifiable credentials or independent
evidence to qualify them as experts as a result of any technical training as envisaged
under section 48 of Evidence Act. In the absence of properly admitted expert testimony,
any invocation of custom remains speculative and incapable of supporting a judicial
finding. In the instant matter, the Court is thereby placed in an invidious position, being
called upon to determine contested matters of custom without the benefit of authoritative
guidance.
If it was to be argued, arguendo, that this Honourable Court should rely on customs as
stated by the witnesses, the Defendant’s purported reliance on Luo customary law is both
selective and internally inconsistent, and thus incapable of sustaining legal scrutiny. It is
contended by the Defendant that, in accordance with Luo custom, the deceased ought to
be interred adjacent to his father’s grave. However, it is common cause that the
deceased’s own father was not buried next to his own progenitor, thereby exposing the
claimed custom as inconsistently applied and lacking uniform observance. Such
inconsistency renders the invocation of custom speculative and unreliable.

It is trite law that customary law, in order to be recognized and enforced by the courts,
must pass the test of repugnancy. Section 3(2) of the Judicature Act (Cap. 8, Laws of Kenya)
mandates that customary law shall only apply where it is not repugnant to justice and
morality or inconsistent with any written law. This principle was emphatically affirmed
in Virginia Wambui Otieno v. Joash Ochieng Ougo & Another [1987] KLR 407, where the
Court held that, “Customary law is only applicable in so far as it is not repugnant to justice and
morality or inconsistent with any written law.”

In the present matter, it is undisputed that the deceased had long separated from his first
wife; that he established a permanent matrimonial home with the Plaintiff, where he
resided until his demise; and that he authored a note unequivocally appointing the
Plaintiff and their children as the persons to oversee his funeral rites. The Defendant and
the 1st Interested Party’s selective reliance on custom, while disregarding the lived reality,
intentions, and express wishes of the Deceased, amounts to a cynical attempt to usurp
the Plaintiff’s rightful role and deny her and her children the closure, dignity, and justice
owed to them. Their invocation of tradition is not made in good faith, but is a veiled
stratagem to achieve extraneous ends under the guise of custom.

Conversely, the deceased reduced his burial wishes into writing in a document dated 2nd
May 2019, which, while styled as a will and lacking attestation in accordance with the
formalities under section 11 of the Law of Succession Act, bears no dispute as to authorship
or signature. Burial is not a matter of succession but one of dignity, legacy, and spiritual
closure. The deceased herein clearly stated: “I want to be buried right inside my homestead
in Ugambe Village… My wife Lydia Anyango Otieno together with my three children shall have
the final say…”. The objectors have not controverted the signature or the intention therein
but merely raise procedural objections based on lack of witnesses. It is further
uncontroverted that the deceased verbally communicated his burial preferences to
multiple individuals who have since testified to that effect. It is therefore submitted that
the said written and oral declarations constitute clear and deliberate expressions of the
Deceased’s testamentary wishes, which ought to be accorded due respect and upheld by
this Honourable Court in the interests of justice and human dignity.
But who is the Plaintiff? She is the second wife to the deceased. She has, through both
oral and documentary evidence, unequivocally demonstrated the existence of a valid
customary marriage between herself and the Deceased, in accordance with the
requirements of section 3(5) of the Law of Succession Act (Cap. 160, Laws of Kenya). This is
substantiated by evidence of prolonged cohabitation spanning over fourteen (14) years,
joint parentage of three (3) children, and exclusive occupation of the matrimonial home
wherein the Deceased resided until his demise. Further corroboration is found in medical
documentation, photographs, and testimonial evidence that collectively affirm the
Plaintiff's continuous caregiving role.

In In re-burial of Musa Magodo Keya (2021) eKLR, that the burial place of a person is closely
linked to 3 things, his wishes, duty imposed on those closely related to him and his home.
The case of San VS GW (2020) eKLR further holds that the law only recognizes that persons
who are closest to the deceased to have the right to bury the deceased and that those persons may
be identified as the spouse, children, parents and siblings in that order, and further that the person
claiming the right to bury the deceased must be one who has demonstrated to have been close to
him or her during his or her lifetime.

Moreover, the conduct of the Defendant and the 1st Interested Party disentitles them to
any equitable consideration by this Honourable Court having abandoned and neglected
the deceased in his lifetime, willfully disobeyed lawful court orders in his death,
orchestrated burial meetings without consultation, and knowingly gave false testimony
regarding the existence of the Plaintiff’s home, only to retract upon cross-examination.
The 1st Interested Party conceded to a prolonged estrangement from the deceased,
acknowledged that he had customarily dissolved their union by demolishing her house,
and failed to produce any documentary proof of a valid marriage.

In Samwel Onindo Wambi –Vs- COO & Ano. (2015) eKLR, the court held that a person’s
conduct to a deceased person can extinguish the right of that person of burying the remains of the
deceased……. The court has to consider all the circumstances of the case and justice of the case.
This position was reiterated in the case of In Samuel Onindo (supra) it was explained that a
person’s conduct towards a deceased person while alive could extinguish his or her right to bury
the deceased. Since the appellant did not show any closeness towards the deceased after their
separation and she did not show any sympathy towards him when he was ailing, it was only just
that the deceased’s wishes and choice of where he was to be buried were to be honored.

CONCLUSION
The deceased made his intentions unequivocally clear in life, to be buried at his
homestead in Ugambe Village, under the care of the Plaintiff and their three children.
That solemn wish, demonstrated by his conduct in life, reduced into writing and echoed
in the testimonies of witnesses, is not only rational but morally compelling. The
Defendant and the 1st Interested Party, having long ceased meaningful engagement with
the deceased, now seek to exploit custom as a convenient instrument to subvert his will.
Their conduct, both during his life and after his death, disqualifies them from any
equitable claim. The invocation of custom in this case is not only inconsistent but
demonstrably repugnant to justice and morality. The Plaintiff, on the other hand, has
stood as a loyal partner, caregiver, and rightful custodian of the deceased’s final dignity.
This Honourable Court ought to rise, as the final sentinel of justice, and grant the Plaintiff
the orders sought, to bury her husband where he called home, and in accordance with
his express wishes. His memory must not be desecrated by legal mischief or ancestral
manipulation.

Let the deceased be laid to rest where his heart, hand, and home reside. We so submit.

DATED at KISUMU this 5th day of JUNE, 2025

ONYANGO, JONYO & COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN AND FILED BY:

ONYANGO, JONYO & CO. ADVOCATES,
3rd FLOOR, PIONEER HOUSE, RM 302,
OGINGA ODINGA STREET
P. O. BOX 2773 - 40100
KISUMU(K)
Email: [email protected]
Practice No. LSK / 2025 / 001232 | Admission No. P.105 / 19329/2021

TO BE SERVED UPON
KEVINE ONDAGO,
SIKUKU MWITI & PARTNERS ADVOCATES,
3rd FLOOR, PLAZA 2000,
MOMBASA ROAD,
P. O. BOX 308-00100,
NAIROBI(K)
Email: [email protected] / [email protected]
Practice No. LSK / 2025 / 009999

OKEYO OCHIEL & CO. ADVOCATES,

VELASCO BUSINESS CENTRE,
P. O. BOX 1104 - 50400
BUSIA(K)
Email: [email protected] / [email protected]