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What is the process of filing a burial dispute in Kenya?
What is the process of filing a burial dispute in Kenya?
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Lilian Muye
said:
Most of the burial disputes in Kenya are caused by certain differences among families and this is because of the advanced global changes in terms of the family structure, matrimonial property, children custody, divorces and successions therefore one needs to be keen when pursuing such a suit in court hence involving the following steps. 1. Institute the legal grounds arising from the dispute. Provide the grounds of the disputes by identifying the cause of death of the deceased person. Confirm whether there is any post-mortem conducted on the decease upon death. The cause of action should be noted on whether they are disputing over reburial, who will bury the deceased or the grave is on a disputed land. 2. Gather Relevant evidence. Ensure that relevant evidence is attached to the supporting affidavit in the application such as the burial permit or death certificate, photos, wills, statements and minutes of the family members that included the deceased person. 3. File a miscellaneous application in court for injunctive orders. The jurisdiction for filing the application can either be in the high court or the magistrate court depending on the value of the land in which the deceased should be buried. This is attached with the relevant annexures such as the title deed to prove the ownership of the land and a marriage certificate can help to validate whether there was an existing relation between the deceased and the applicant. 4. Filing a Petition or Originating Summons The filing can be done under a Certificate of urgency to expediate the conclusion of the courts proceedings only under succession matters for the deceased family. 5. Seek interim orders The temporary injunction orders sought through a miscellaneous application can be issued to stop a burial pending the hearing and determination of the application. A preservative order can as well be issued restraining the Respondents from removing the deceased body pending the hearing and determination of the application. 6. Hearing of the application in court It is a mandatory requirement that all parties associated with in the burial dispute be present in court and these may include the parents, spouses and siblings. All the relevant issues and facts should be outlined in court as to the relationship of the deceased and the last wishes of the deceased whether written or oral to avoid issue of interest because culture and religion vary as a result of different backgrounds. 7. Court Annexed Mediation During the hearing of the application, the court may offer a chance for court annexed mediation among the parties and if a settlement agreement is entered then it becomes a Ruling of the court. If non-compliance is recorded among the parties, then the court will proceed with the hearing of the application. 8. Courts analysis and determination The honorable court will proceed in rendering its ruling upon considering the grounds, submissions and argument of both parties, jurisprudence of all the legal frameworks and come up with a decision on the best interest of the deceased person and according the dignity in death pursuant to the constitution of Kenya, 2010 in the respect for culture, family, life and religion.
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