Muya v Munyao [2026] KEHC 15986 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. E275 OF 2025

FRANSICA NDUNGE MUYA…………….………………….... APPELLANT

VERSUS

PHOEBE NDUNGE MUNYAO……………………………… RESPONDENT

(Being an Appeal from the entire Judgment and orders of Hon. Nyaboke Sure, PM, delivered on 7th November 2025 in Kangundo MCCC Case No. E255 of 2025).

JUDGEMENT

1. In the Plaint dated 7th October 2025, the Appellant then Plaintiff sought the following orders:

a) A declaration that the deceased and the Plaintiff were legally married to each other and as such they be recognized as wife and husband respectively.

b) An order allowing the Plaintiff to bury her husband and/or the deceased's remains at the Plaintiff's matrimonial home in Mavindu village, Kanzalu location, Machakos County

c) Costs and interest of the suit.

2. The Respondent then Defendant denied the Plaintiff's claim through the Written Statement of Defence dated 13th October 2025 and Counterclaimed for the following orders:

a) A declaration that the Plaintiff and the Defendant have joint and legal and customary right to bury Nicholas Muya Ndivo (deceased).

b) An order that the remains of the deceased, Nicholas Muya Ndivo, shall be interred at his land at Kamulu area, on land parcel number Nairobi/Block 118/587.

c) An order that both the plaintiff and the defendant together with their children, families and friends be at liberty to fully participate in the funeral arrangements and attend the burial

d) Costs of the counterclaim.

e) Any other better and further relief that the court may deem appropriate in the circumstances.

3. The Appellant’s case was that the deceased's wishes were for him to be buried in their matrimonial home at Mavindu, behind the main house. This position was supported by Michael Musembi Muange (PW2), Daniel Mulinge Mutungi (PW3) and Bernard Kyule (PW4).

4. The Respondent’s case was that the deceased had disputes with the Appellant and their children, and he had thus moved to the Respondent’s home at Kamulu, where he expressed his wishes to be buried. This position was supported by the deceased's siblings, Joseph Muasya Ndivo (DW2), Bernard Mutua (DW3) and Mary Nduku Mutuko (DW4).

5. The trial court’s record shows the trial Magistrate tried to resolve the issue amicably, but the Parties were adamant in their positions. The directions for filing written submissions were then given by the trial court and the same were complied with.

6. Upon considering the Parties’ respective submissions, the only question for determination by the trial court was whether the deceased could be buried in Mavindu or Kamulu. This was a question that the trial court agonized over and grappled with since the Appellant and the Respondent were adamant on where the deceased should be buried. The Appellant relied on Section 3 (2) of the Judicature Act and submitted that in burial disputes, the Courts have resorted to customary law, common law, marriage law, succession law, human rights or land law.

7. The Appellant submitted that she and the deceased, having married under African Christian Marriage and Divorce Act, he was incapable of contracting another marriage under customary laws and relied on the case of Lucy Mwendwa Muuru -vs- Tony Githuku (2009) КЕНС 3553 (KLR).

8. The Appellant further submitted that the deceased was a member of the church, various welfare and funeral associations in Mavindu. The Appellant stated that before the church elders, the deceased expressed his wishes of being buried in Mavindu. The Appellant challenged the minutes of 12th March 2025 and submitted that the Respondent was inconsistent on who authored it, whether the deceased or Mary Nduku, and that if it was authored by Mary Nduku, she was never called as a witness which was not the position. This was however not correct as Mary Nduku Mutuko was called as Respondent’s witness DW4.

9. The Respondent submitted that the deceased was a Kamba, the applicable law was Kamba customary laws, where the wishes of the deceased were honoured as to his place of burial. The Respondent submitted the Appellant had not pleaded the place of burial in her pleadings and her witnesses were inconsistent on who was present with when the deceased expressed his burial wishes. Further, the Respondent submitted that the deceased couldn't have made this wish in the absence of his family.

10. The Respondent submitted that of the two versions, the minutes of 12th March 2025, because his family members and the people who would have buried him were present, was the most probable. The Respondent submitted that with such compelling evidence, the court could not go against the wishes of the deceased and relied on the case of ONINDO WAMBI -VS- COO & ANOTHER (2015) KЕСА 620 (KLR).

11. Further, the Respondent submitted that though anyone could bury a deceased person, still, that person's conduct towards the deceased, when alive, can extinguish this right and reliance was placed on the finding in the case of SAN-VS-GW (2020) KEСА 46 (KLR).

12. The trial court considered the above, and as noted earlier, the Parties were asking the court to decide where the deceased was to be buried; whether at the Appellant’s home in Mavindu or the Respondent’s home in Kamulu. The Appellant anchored her rights on her marriage certificate and a meeting that was held in 2022. On the issue of statutory marriage, the Parties rightly submitted that besides the marriage certificate, a deceased person can decide how he wants his body to be interred, and generally, there are many instances where Kenyans have embraced other methods of interments, which is contrary to customary law, i.e. cremation.

13. The trial court was therefore not convinced that a marriage certificate can give any person exclusive burial rights. As noted in the case of SAN -VS- GW (Supra), other factors can be considered, including the relationship of the deceased to those wishing to bury him.

14. There was no dispute that the deceased lived with the Appellant, but would also reside with the Respondent according to their arrangements. The Respondent supplied the Appellant with her list of documents, and besides the minutes of 12th March 2025, she did not dispute their authenticity.

15. The trial court reviewed the minutes of 26th August 2006 and the dispute therein involved the deceased, the Appellant, and their son, Silaa. The minutes show the Appellant was disrespectful to the deceased and had caused her son to be disrespectful as well. The deceased resolved to give the Appellant the freedom to remain in the marriage, return to her maternal home, or remarry. The minutes also show the deceased was at his wits end with the Appellant and her son, Silaa. The minutes of 23rd September 2006 show the meeting was to resolve a dispute between him and the Appellant and their sons, Kyalo and Stanslous. The minutes show that the Appellant and her sons disrespected the deceased, damaged or sold off his properties. The minutes continue to show that the deceased was disgruntled with the Appellant and their sons. The minutes of 7th October 2006 show that the deceased wanted to resolve the dispute between the Appellant and their son, Silaa. The Appellant did not attend the meeting, and Silaa claimed he did not to know her whereabouts. Silaa was directed to get a goat to seek forgiveness. It is with the above background that the Respondent stated that towards the end of his life, the Appellant and her children became hostile and refused to take care of the deceased. This caused the deceased to relocate to her place in Kamulu while very sick.

16. The Respondent stated that when she took the deceased to the hospital, she alerted the Appellant through her daughter Eunice, and they came to the hospital on 14th November 2024. They were told the deceased required dialysis, but the Appellant became unco-operative and the Respondent was left to shoulder the hospital bill. The trial court reviewed the deceased’s Hospital Admission documents dated 24th October 2024, 12th February 2025 and 17th September 2025 and the Respondent was listed as the next of kin. This showed that it is the Respondent who was taking the deceased to the hospital when he needed it the most. The question is, where was the Appellant at this point? The Appellant's history with the deceased, when the contents of the minutes are put into context, did not convince the trial court that the deceased held a meeting with church members and told them where he was to be buried. The evidence shows that the deceased had disengaged with the Appellant and their sons and the deceased tried to resolve those issues before moving to Kamulu to live with the Respondent.

17. From the minutes of 12th March 2025, at this point, the deceased lived with the Respondent who took care of his health and needs. The Appellant claimed that she went to take the deceased to the hospital, but was chased away. The trial court was not convinced of this position because the Appellant would have involved the authorities or her family in the best interest of the deceased. The Respondent stated that the meeting was convened by the deceased and this was corroborated by his siblings including DW2, DW3 and DW4. DW2 stated that the deceased informed them he had been summoning the Appellant and her children, but they did not honour his summons. The evidence of the Appellant and her children not honouring the deceased's summons was supported by DW3 and DW4, and the minutes alluded to above. The Respondent stated the deceased expressed his wishes to be buried in Kamulu and this evidence was supported by DW2, DW3 and DW4. The trial court considered the evidence of DW2, DW3, and DW4 and there was no evidence of acrimony with the Appellant. The failure to provide the minute recorder does not negate the meeting of 12th March 2025, and the deceased's wishes to be buried in Kamulu, where perhaps, he experienced peace.

18. The minutes of 12th March 2025 show who were present. It shows the deceased was received by the Respondent on 22nd October 2024, in a critical condition and she took him to Kijabe Hospital, where he was admitted. The minutes show the deceased directed the sale of part of his land for medical expenses, and in case of death, he should be buried in Kamulu. This part appears to be signed by the deceased. The Appellant did not challenge this signature.

19. The trial court also observed that, with respect to the Appellant's position, the contents of the minutes were corroborated by the deceased's brothers and sister, and as noted earlier, their relationship with the Appellant appears to be platonic and not based on acrimony. In the case of ONINDO WAMBI -VS- COO (Supra), it was further held that:-

"Besides, the fact that given the father and his family's treatment of the deceased he is not deserving of the right to bury the deceased's remains. We find no good or compelling reason to go against the deceased's wishes"

20. The trial court was convinced the Appellant knew of her strained relationship with the deceased, and that is why her children, who were in court and appeared to be adults, did not testify. The Respondent had convinced the trial court that the deceased expressed his wishes to be buried in Kamulu and for reasons stated above, the trial court found no compelling reasons to depart from those wishes.

21. The trial court upon considering the evidence adduced before it, found that the Respondent had proved on a balance of probability her Counter Claim and proceeded to make the following orders:

i. That the remains of the deceased, Nicholas Muya Ndivo, shall be interred in land parcel number Nairobi Block 118/587.

ii. That the plaintiff, defendant, together with their families are at liberty to fully participate in the funeral arrangements and burial.

iii. That though the parties are at liberty to appeal this decision, there shall be no stay orders. The deceased to be buried within a reasonable time.

iv. The Plaint is dismissed with no orders as to costs. The Counter Claim, as allowed and noting the relationship of the parties, each will bear their costs.

22. Being aggrieved by the above trial court’s finding, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 11th November 2025 raising eight grounds of appeal as hereunder:

1. The learned trial magistrate erred in law and fact by giving preference to the Respondent despite the existence of a valid statutory marriage between the deceased and the Appellant, thereby disregarding the Appellant’s superior legal status under the Marriage Act and Kamba customary law.

2. In failing to pronounce herself on the Appellant’s position on the legality of the Respondent’s status as a wife, the learned magistrate erred in law by recognizing the Respondent as having equivalent rights to a customary wife without proof of a valid customary marriage.

3. The trial court misdirected itself in law and fact by placing undue reliance on alleged minutes and witnesses without establishing their authenticity, context, or legal weight thereby reaching an erroneous conclusion.

4. The learned magistrate erred in law and in fact by failing to consider the edicts of Kamba customary law which required the deceased to be buried at the Appellant’s home being the first wife.

5. The learned magistrate erred in law and fact in failing to consider that burial disputes, being governed by the deceased’s personal law, must be determined in accordance with Kamba customary law and not personal preferences or informal arrangements.

6. The learned magistrate erred in shifting focus away from the Appellant’s evidence and ignoring corroborated testimony that the deceased wished to be buried in his ancestral family home and the burial ceremony to be conducted by the Catholic church in Mavindu.

7. The learned magistrate erred by relying heavily on alleged family disputes and unproved allegations to deny the Appellant burial rights.

8. The judgment is against the weight of evidence, misapplies customary and burial law principles, and violates the rights of the biological children of the deceased to bury their father and is in contravention of Article 159 of the Constitution.

23. Reasons wherefore the Appellant prayed that the appeal be allowed, the judgment of the trial court be set aside and the court to declare that the deceased be interred at the Appellant’s Matrimonial home in Mavindu village, Kanzalu Location, Machakos County.

24. The court directed that the appeal be canvassed through written submissions and Parties complied. The Appellant’s submissions are dated 21st April 2026 whilst the Respondent’s submissions are dated 21st May 2026.

25. A brief summary of the Appellant’s submissions is that the learned trial magistrate erred in law and fact in concluding that both the Appellant and the Respondent were legal spouses of the deceased. That the learned magistrate misdirected herself in law and fact by misapplying and/or failing to give due weight to the Kamba customary law and placing undue reliance on contested and unproven accounts of the deceased alleged burial wish to be interred in Kamulu Area.

26. The Appellant also submitted that the learned magistrate erred in law and fact by disregarding material evidence and testimony adduced by the Appellant by placing undue reliance on speculative, unsubstantiated and/or remote accounts of alleged prior family disputes. That any contention that the deceased has since been interred is legally inconsequential. Of particular concern is the learned magistrate’s express pronouncement, within the judgment itself that there would be no stay. That unusual course, taken in the face of a dispute of this nature and obvious likelihood of an appeal, raises serious doubt as to whether due regard was had to the parties’ right of appeal and the need to preserve the subject matter. That in any event, subsequent acts founded on a flawed judgment cannot defeat justice. The law is not without remedy. This Court retains full jurisdiction to grant effective relief including orders for exhumation and re-interment. Burial cannot be invoked to perpetuate an illegality or to shield a decision arrived at in error.

27. For the foregoing reasons the Appellant urges this Court to allow the appeal as prayed.

28. The Respondent submitted first that this Court had ordered the Appellant to file the Record of Appeal within 14 days from 26th November 2025 which lapsed on 10th December 2025 but the Appellant filed the Record of Appeal on 29th January 2026 without any reason as to filing the Record of Appeal late. This points to the lack of respect of court orders by the Appellant to which this Court should not entertain its appeal on the back of the illegality occasioned. Reliance was placed in the case of Ramji Devji Vekaria vs Joseph Oyula120111 KECA 327 (KLR) the Court of Appeal Judges struck out an Appeal for similarly being filed out of time without leave.

29. The Respondent further that the trial Magistrate was right in awarding judgment in favour of the deceased being buried at the Respondent’s residence as per the wishes of the deceased person which is the norm as per the Kamba Traditional customs which holds precedence in matters of interment, The Appellants assertion that there was not enough evidence presented before the trial court is misguiding. This is because the trial Magistrate illustrated without doubt the evidence presented by the Respondent showcasing how the deceased expressed his wishes to be buried and when that was done. That the Respondent had further presented evidence of meetings that were corroborated by the deceased's siblings showing how the deceased relationship with the Appellant was prior to his death and how disrespectful the Appellant and her sons were in their treatment of the deceased.

30. The Respondent prayed that the present Appeal should be dismissed and struck out in whole with costs to the Respondent.

Analysis and determination

31. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the trial court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of Mbogo v Shah [1968] EA 93, the Court of Appeal held that an appellate court should not interfere with a trial court's finding unless it is shown that the court misdirected itself in some matter and as a result arrived at a wrong decision, or that it is manifestly wrong. The duty of the first appellate court was discussed by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle & Another Vs Associated Motor Board Company and Others [1968] EA 123, the Judges in their usual gusto, held by as follows;-

“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of re-trial and the Court of Appeal is not bound co follow the trial Court's finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is in consistent with the evidence generally."

32. I have considered the trial court’s record, the Memorandum of Appeal and the rival submissions filed by the parties on the appeal. The main question flowing from the above is; where was the deceased in this case to be buried between Mavindu village and Kamulu Area?

33. Before I can respond to the above question, I have to address the issue raised by the Respondent on whether the appeal ought to be struck out, the Record of Appeal having been filed outside the timelines given by the court. The Respondent contend that that this Court had ordered the Appellant to file the Record of Appeal within 14 days from 26th November 2025 which lapsed on 10th December 2025 but the Appellant filed the Record of Appeal on 29th January 2026 without any reason as to filing the Record of Appeal late. The documents filed in this appeal show that the trial court delivered its judgement on 07/11/2025 and the Memorandum of Appeal dated 11/11/2025 was filed in court on the same date which was within the time stipulated for filing of appeals from the subordinate courts as provided for under Section 79G of the Civil Procedure Act. Section 79G of the Civil Procedure Act states: -

“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

34. This court finds that the Appellant’s Appeal is properly before this court. How about the issue of the Record of Appeal which was filed late by about fourteen (14) days from when the same was to have been filed.

35. This court has looked at its proceedings of 02/02/2026 when the matter came up for mention. The Respondent’s Counsel Mr. Nguma indicated that he had filed a Notice of Motion application dated 6th February 2026 seeking to have the Record of Appeal struck out for having been filed outside the timelines earlier given by court without leave. The Respondent’s Counsel Ms. Mugo stated that they had filed a Replying Affidavit dated 9th February 2026. The court then made orders as follows:-

“1. Today this matter was coming up for directions on the Appeal. The Appeal was filed within time and the Appeal by way of a Memorandum of Appeal dated 11/11/2025. Is admitted for hearing.

2. This matter was mentioned before the Deputy Registrar on 5/2/2026 when parties were to confirm compliance with the filing of the Record of Appeal. I have perused the proceedings of the Deputy Registrar on the said date and I confirm that the Record of Appeal was said to have been filed in compliance. No objection whatsoever was raised by the Respondent. In any event the directions are yet to be taken on the disposal of the appeal and no prejudice has been suffered by either party. This court will therefore proceed to give directions on the hearing of the appeal which will be by way of written submissions.

3. The Appellant is granted 14 days to file and serve submissions.

4. Upon service the Respondent will have 14 days to file and serve response submissions.

5. Mention on 11/6/2026 to fix a judgement date.

6.Any pending application can be canvassed in the submissions on the appeal”.

36. From my above orders, it is clear that the issue of the late filing of the Record of Appeal was addressed. None of the parties addressed the court on any other pending application through their submissions.

37. In any event, the Respondent proceeded to make extensive submissions on the appeal. The Respondent has not submitted on any prejudice she has suffered in preparing the submissions to this appeal as result of the late filing of the Record of Appeal. It is my view that the issue was thus spent.

38. Now turning to the main question on where was the deceased in this case to be buried between Mavindu village and Kamulu Area, In the case of Peters v Sunday Post Limited [1958] EA 424, the Court of Appeal for the former Eastern Africa emphasized the restraint with which an appellate court should exercise its power to re-evaluate evidence and interfere with factual findings of the trial court. This principle underscores the deference owed to the trial court's advantage in observing the demeanour and credibility of witnesses.

39. However, it does not absolve the appellate court of its duty to independently evaluate the evidence where necessary, particularly where it is alleged that the trial court erred in law or fact. The court stated:

" It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses...But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion..."

40. I have carefully and keenly re-analysed and re-evaluated the evidence adduced before the trial court. There is no dispute that the Appellant and the Respondent were the deceased's spouses. It is admitted by the Appellant in her own testimony that the Respondent is her Co-wife.

41. There is no dispute that the Appellant's matrimonial home is in Mavindu village while the Respondent's home is in the Kamulu area. There is no dispute that these two homes are built on lands belonging to the deceased, though the respective titles were not produced in evidence.

42. There was also no dispute that the deceased lived with the Appellant, but would also reside with the Respondent according to their arrangements.

43. The Appellant contends that she and the deceased, having married under African Christian Marriage and Divorce Act, he was incapable of contracting another marriage under customary laws and therefore she was the proper person to bury the deceased at her home at Mavindu village while the Respondent argues that the deceased was properly buried at the Respondent’s residence at Kamulu Ares as per the wishes of the deceased which is the norm as per the Kamba Traditional customs which holds precedence in matters of interment.

44. The burden was on both the Appellant and the Respondent to prove their respective cases. This is on the basis of Sections 107-109 of the Evidence Act Cap 80 Laws of Kenya, which provides that:

Section 107-

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Section 108-The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Section 109-The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

45. Courts have held that the resolution of burial disputes in Kenya is governed by a combination of customary law, common law, and statutory provisions, with African customary law playing a pivotal role as provided under Section 3(2) of the Judicature Act, Cap 8, which states:

“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.”

46. The Court of Appeal in Ontweka & 3 others v Ondieki (Civil Appeal E692 of 2023) [2024] KECA 11 (KLR) (25 January 2024) (Judgment) held that:

“…burial disputes are emotive, and the court is called upon to balance the clashing interests of parties who should ordinarily be involved in the burial in one way or another. Unlike many other civil disputes, burial issues concern people who are close to the deceased in one way or the other. Consequently, this court desires to find some sense of legal and constitutional harmony by overcoming the dichotomies that seem to make burial dispute jurisprudence disarrayed. As stated by Allan Kellehear in ‘Grief and Loss: Past, Present and Future’ (2002) 177 Medical Journal of Australia 177, physical, spiritual and intellectual experiences of grief and bereavement cannot be understood in isolation, but only in the context of social norms, personal styles and cultural prescriptions.”

47. The court proceeded to state that:

“43. In burial disputes, we can only call our Constitution a living Constitution if it also considers the customs that communities regard as crucial in death rites but only to the extent that the death rites also promote constitutionalism. In the same breath, we can only call our customary practices progressive customs if they promote the burial wishes of the deceased that do not flout constitutional order.”

48. While it is trite that there is no property in a dead body, it is crucial that the wishes of the deceased as regards to the manner of interment ought to be considered. In this case, the minutes of 26th August 2006 and the dispute therein involved the deceased, the Appellant, and their son, Silaa. The minutes show the Appellant was disrespectful to the deceased and had caused her son to be disrespectful as well. The deceased resolved to give the Appellant the freedom to remain in the marriage, return to her maternal home, or remarry. The minutes also show the deceased was at his wits end with the Appellant and her son, Silaa. The minutes of 23rd September 2006 show the meeting was to resolve a dispute between him and the Appellant and their sons, Kyalo and Stanslous. The minutes show that the Appellant and her sons disrespected the deceased, damaged or sold off his properties. The minutes continue to show that the deceased was disgruntled with the Appellant and their sons. The minutes of 7th October 2006 show that the deceased wanted to resolve the dispute between the Appellant and their son, Silaa. The Appellant did not attend the meeting, and Silaa claimed he did not to know her whereabouts. Silaa was directed to get a goat to seek forgiveness. It is with the above background that the Respondent stated that towards the end of his life, the Appellant and her children became hostile and refused to take care of the deceased. This caused the deceased to relocate to her place in Kamulu Area while very sick.

49. The Respondent stated that when she took the deceased to the hospital, she alerted the Appellant through her daughter Eunice, and they came to the hospital on 14th November 2024. They were told the deceased required dialysis, but the Appellant became unco-operative and the Respondent was left to shoulder the hospital bill. The deceased’s Hospital Admission documents dated 24th October 2024, 12th February 2025 and 17th September 2025 show that the Respondent was listed as the next of kin. This confirmed that it is the Respondent who was taking the deceased to the hospital when he needed it the most. Just like the trial court, I would ask the question, where was the Appellant at this point?

50. The evidence shows that the deceased had disengaged with the Appellant and their sons and that the deceased tried to resolve those issues before moving to Kamulu Area to live with the Respondent.

51. Further from the minutes of 12th March 2025, at this juncture, the deceased lived with the Respondent who took care of his health and needs.

52. Clearly, the evidence presented by the Respondent showcased how the deceased expressed his wishes to be buried and when the wishes were done. The Respondent’s evidence of the meetings as re-analysed above were corroborated by the deceased's siblings showing how the deceased’s relationship with the Appellant was prior to his death and how disrespectful the Appellant and her sons were in their treatment of and approach towards the deceased.

53. The Appellant did not adduce any evidence to controvert the Respondent’s case on the evidence the Respondent placed before the trial court.

54. Although Kenya has a plurality of marriage systems, no system of marriage ranks higher than the other. A spouse married within any system of marriage recognized under the  Marriage Act Cap 150 of the Laws of Kenya enjoys the rights and benefits that attend to such marriage. In the instant case, the fact that the Appellant was married to the deceased under the African Christian Marriage and Divorce Act while the Respondent was married to the deceased under the Kamba Customary law does not make her any more of a spouse to the deceased than the Respondent.

55. I therefore disagree with the Appellant’s assertion that the learned magistrate misdirected herself in law and fact by misapplying and/or failing to give due weight to the Kamba customary law and placing undue reliance on contested and unproven accounts of the deceased alleged burial wish to be interred in Kamulu Area. Notably, this court observes that the Appellant did not seek for orders of exhumation of the deceased’s body in the appeal which would be a very crucial order to the other orders sought in the appeal.

Disposition

56. In the end, I find that the trial court rightly considered the Parties’ respective cases and the evidence in support thereof and rightly found that the Respondent had proven the deceased’s wish to be buried at Kamulu Home on land Parcel No. Nairobi/BLOCK 118/587 to the required standard under the doctrine of the deceased’s wishes.

57. In the circumstances, and upon a consideration of the grounds of appeal, the arguments presented by the Parties and the prayers sought in the appeal it is my finding that the judgment of the trial court is sound, and I agree with it wholly. The deceased ought to be allowed to rest at Kamulu Area, a place where perhaps he experienced peace at the time of his demise and where he will continue to rest in eternal peace.

58. The upshot is that the appeal herein is dismissed and judgement of the trial court delivered on 7th November 2025 upheld.

59. There shalI be no order as to costs since this is a family matter.

60. It is hereby so ordered.

Right of Appeal 30 days.

JUDGEMENT DATED, SIGNED & DELIVERED ON VIRTUAL TEAMS AT MACHAKOS THIS 7TH OCTOBER 2026

NOEL I. ADAGI

JUDGE