Man loses case to bury the remains of his estranged wife away from her matrimonial home

Busia, Friday May 5, 2023

K.N.A By Victoria Magar/Salome Alwanda

A Busia Court has dismissed a case where a man wanted his estranged deceased wife to be buried away from her matrimonial home.

 In his ruling, Busia Resident Magistrate Patrick Olengo argued that claims by the plaintiff Alois Chami Wafula that the body of his estranged wife Scholastica Taaka should be buried in a parcel which he claims he bought for the deceased in accordance with the customs of Ababuri /Bakhayo clan which requires that when a wife leaves her matrimonial home, she cannot be allowed back to the same home whether alive or dead were unfounded.

 Magistrate Olengo argued that the burial place of a deceased person is determined by his or her personal law.

 “Personal law in this matter is the customary law of her husband’s clan if she is married,” he explained adding that the deceased should be buried in accordance to the customary law of the Baburi clan which dictates that she be buried outside her matrimonial home as stated by Wafula.

He however stated that such customs can only be interpreted by experts on such customary laws or by some scholarly writings of those who have done research in customary laws of a particular community or as pronounced by other decided court cases.

The magistrate stated that no expert was presented to the court to prove the assertions by the plaintiff and no writing of a scholarly nature or any decided case that pronounced such practice were presented to the court to prove the assertions by the complainant.

 “This court is not an expert in customary laws of Baburi /Bakhayo clan that had to be proved in an acceptable way to be followed by the court,” he said adding that the court cannot follow the customary law.

“The deceased was the wife to the plaintiff and her home was on ‘Bukhayo/ Bugengi 16478 land parcel before they separated,” he said adding that the plaintiff’s other two wives who passed on had their bodies interred on the same land parcel.

Olengo further said that the first prosecution witness informed the court that they were born and brought up on Bukhayo/Bugengi 16478 and that is the place they have known as their home since childhood and some of the dependents died there.

“There was no good reason given as to why the deceased should not be buried there and it is a common practice among communities within Western Kenya that one is buried in her matrimonial home and beside her house, I believe this is the same practice among the Ababuri /Bakhayo clan,” he said adding that the plaintiff’s other wives were also buried  there and this particular one should not be an exception because the plaintiff admitted before the court that she was still his wife despite having separated for 20 years. 

He argued that the plaintiff is ranked first in priority when it comes to burying the remains of his estranged wife but the decision must be within the customary law of his clan and should not be repugnant to justice, morality and public policy.

“The decision of the plaintiff to have the remains of the deceased to be buried on the land parcel Bukhayo/Bugengi 17029 where there is no house, no one has ever lived, is in my view against the justice and morality and the court must resist it,” he said.

“From the evidence above I find that this case lacks merit and the same is hereby dismissed with cost, the remains of Scholastic Taka shall be interred on the land parcel Bukhayo/ Bugengi 16478 where she lived as the plaintiff’s wife and where she gave birth to  the defendants who are her children, the burial rites shall be conducted in accordance to the customary laws of Baburi /Bukhayo clan, the OCS Busia police station is hereby directed and ordered to provide security during the burial ceremony ,” he directed adding that each party should bear its own cost.

Maximilla Wafula, a daughter of the deceased requested the Court to allow them bury their mother where her co-wives were buried and where they were born, a place they know as their home.

The late Scholastica Taaka passed on two weeks ago and her body was taken to Sega mortuary in Siaya County

Initially the deceased was set to be buried last week at Esikulu Sub Location in Busia County but due to the dispute on which land she should be buried, the burial plans had to be cancelled.

Courtesy K.N.A