Widows have a right to bury their husbands in their ‘boma s’

Lucy Kemboi v Cleti Kurgat & 5 Others (2012) eKLR www.Kenyalaw.org

A Mshila. J

High Court Nairobi

March 13,2012.

A widow has right, just like that of  her in-laws, to bury the remains of her husband, the High Court has ruled.  Justice Mshila held that a widow’s right to bury the remains of her husband were provided for and protected by Article 27 (3) and (4) of the Constitution, in that a widow should not be discriminated upon by cultural practices.

Article 27(3) and (4) of the Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground.

Lucy Kemboi brought a suit against her in-laws ,the defendants  herein, seeking inter-alia authority to arrange for the collection, burial and interment of the body of her husband the late Ambrose Kipkoech Kurgat at their matrimonial home at Kamariny, Keiyo Marakwet County, on such reasonable time as she may determine, with liberty to the defendants to participate at their discretion.

According to Lucy, the deceased was her husband and after he had passed on her In-laws held meetings and made funeral arrangements without involving her nor her children. The meetings were held at her late husband’s step- mother’s house and she was not afforded any hearing and was only given information as to what had been decided. Lucy submitted that she only got to know that her in-laws intended to bury the deceased next to the grave of his late father through a defence filed by her in-laws after she had filed a suit in the Chief Magistrates Court. She also submitted that her late husband had a homestead and  that she had constructed a house thereat together with her late husband. She stated that the homestead and house were located on a parcel of land, which piece of land was demarcated and given to her late husband by the deceased’s late father and that it was upon that portion of land that she wanted to inter her late husband’s remains. Lucy further submitted that whereas her in-laws wanted to inter the remains at a grave site set apart by her  late father in-law as a family graveyard, the said  site was approximately two hundred (200) metres from her homestead and therefore she should have  been allowed to bury her late husband at the right place where she had built a house and established a homestead.

In support of her case, Lucy called a Keiyo elder to testify on her behalf on Keiyo customs. It was the elder’s evidence that according to Keiyo customs, meetings  for such funeral arrangements had to be held at the house of the deceased in consultation with the deceased’s widow and children and  that it was the practice that a married man had to be buried in his “Boma” and that it was the clan elders who decided where a deceased person was supposed to be buried.

The defendants (in-laws) on their part submitted that their late father had set apart, aportion of the land as a graveyard, arguing that the burial site was outside the “Boma” of their late father and that their late father’s remains, their mother’s, their sister’s and grandmother had been interred on that piece of land. The defendants also submitted that the alleged house built by Lucy and their late brother, was built for purposes of hosting their daughter’s wedding, otherwise the deceased had a rented room in a place called Chembulet and carried on a business of a bar.

The defendants further submitted  that Lucy lived in a rented house in Iten and that she never slept in their home built in Kamariny. They stated that Lucy would attend the funeral meetings and would retire to her house in Iten after the meetings. It was their contention that the deceased had not been shown any portion of land by their late father but he had gone  ahead and built the house on the portion. The defendants further submitted  that their father’s estate had not been distributed and that the site of the deceased’s house might not have been the deceased’s allotment upon distribution. They   also testified that one of  their late brother  was buried on a piece of land that he had been given by their late father and that he had established his home on that piece of land, hence his being interred there. The defendants therefore asked the court that they should be allowed to inter the deceased at the family grave yard.

The High Court after hearing rivalry submissions considered inter-alia, who should actually bury the deceased and where had the deceased established a home. It was the Court's view that though Keiyo customary law was applicable and that under the said customary law the clan together with the deceased brothers were responsible for the burial of the deceased, Lucy having been married to the deceased had a right derived from written law to bury the deceased.

The Court further was of the view that the rights of Lucy were provided for and protected by the Constitution, in that Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan did, to bury her husband’s remains.

 In answering the question as to  where the deceased had established a home, the  Court drew reference from the case of Apeli v Buluku C.A No. 12 of 1979 where it was held thus “……… a person wishing to be buried outside his father’s homestead takes steps to have an acceptable and established home elsewhere…………” . In view of that , the court observed that  by conduct and by reference from the  facts, neither the deceased nor Lucy had established a permanent home at Kamariny and that  the fact that a temporary house had been built on the said portion of land did not confer ownership of the property upon the deceased. From the foregoing, Justice Mshila  held that the deceased did not have a title to the portion of land at her alleged homestead as the estate was yet to be distributed nor had a Grant of Letters of Administration been taken out over their late father’s estate. Thus by giving Lucy the body to inter at the alleged homestead  would interfere with the other family members' rights to the property.

Ultimately, the  Court  ordered that the deceased’s body be handed over to Lucy and her in-laws jointly or to any one of them for burial at the site set apart by the late father in-law and father respectively  for burial.