• Appellants say she was divorced and even remarried and had no children with their relative, hence is a stranger on their land.
• Her son denies separation or remarriage, says her husband is his father and he had two wives
Image: REUTERS
The High Court in Machakos on Monday halted the burial of a woman on the land of her husband from whom she is said to have separated.
Two appellants contended that under the Kamba customary law, if a woman has divorced her husband she cannot be buried on his land as that would be a taboo.
John Nduva and Sammy King’ola said Beatrice Nthenya was legally separated from Wambua Kiema.
Nduva said Ntheya even remarried and could, therefore, not be buried on Kiema’s ancestral land in Kamuthanga village, Mutituni, Machakos county.
He said his brother married Nthenya under Kamba customary law but the two separated in 1968. Her family returned dowry to the family of Kiema hence the two became officially divorced according to the customs, Nduva said.
By the time of the separation, the two had no children.
King’ola, Kiema’s son, said Ntheya remarried one Makaya with whom she lived and had children.
However, he said, a long time after Kiema died in December 1985, Ntheya returned and tried to settle on his land.
“We tried to evict her and her son Kioko amicably before the elders, clan and members of both families. However, before a solution could be reached, Ntheya became sickly and succumbed on August 1 and her son commenced burial preparations on Kiema’s land,” Kong’ola's submissions read.
The two instituted a suit on August 6 seeking a permanent injunction against Kioko from burying his mother on their ancestral land. They also filed an application to restrain him from burying Nthenya until the suit is determined.
“It was contrary to Kamba customs to bury a stranger on our ancestral land,” they stated.
According to the appellants, burial is about culture, customs, taboos and rights which go deep in the hearts of Kamba people. "Once violated, there is no adequate remedy and to cure it, it will cause a lot of hassle and rites to appease the ancestors."
Kioko denied that the ancestral land was Kiema’s, claiming that it belonged to his deceased grandfather. He also denied that Ntheya was separated from Kiema, whom he says is his biological father. He also denied claims his mother remarried.
“The two have tried to evict me for no valid reason but have been restrained by the government,” he said.
Kioko said his father had two wives – King'ola's mother Grace Kalekye, the first wife and Ntheya, who also had three daughters.
He further said his father had constructed a home for each wife and was living with Nthenya, hence is a beneficiary of the estate.
“My mother and I resided on the land for more than 30 years. She remained on the land until his demise."
He added, "She even used to cultivate the land and had planted trees which are mature.”
The trial magistrate declined to issue orders blocking the burial saying she found no evidence that Ntheya was divorced or had remarried.
Justice George Odunga, however, overturned the ruling and issued temporary orders stopping the burial until the case is determined.
“The trial magistrate seems to have approached the application as if she was determining the main case. The determination could only have been made after hearing the main suit. In so doing she erred by applying a standard that was not applicable at that stage of the proceedings,” Odunga said.
He said considering the untidiness of exhumation, it is better for the body to remain where it is until the case is determined.
Edited by R.Wamochie