Muumbo & another v Muumbo & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that burial disputes are decided by closeness to the deceased and customary law, not by a will.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is incompetent as contended in the respondents' preliminary objection
- 2.Whether the learned Judge condemned the appellants unheard contrary to natural justice
- 3.Whether the Judge erred in finding that the deceased's wishes as to burial could not be ascertained from the evidence
- 4.Whether the Judge misapprehended the relationship between the deceased and the rival parties vis-à-vis the right to bury
- 5.Whether the Judge erred in finding Thitani/Migwani/1498 inaccessible to the larger family, introducing unpleaded issues
- 6.Whether the Judge failed to take into account the diverse Kamba customs on burial
Key legal issues
#Competence of the appeal / preliminary objection
Appeal was not incompetent; objections on mandate were subsumed into the second-appeal standard and the want-of-form objection was cured by condensation and rephrasing of grounds
The Court held objections 1 and 2 touched on its second-appeal mandate which it would bear in mind; the form objection was cured by the appellants condensing the grounds and the Court rephrasing them. It was satisfied the appeal was competent and proceeded to the merits.
Natural justice - condemnation unheard
Rejected; appellants identified no specific aspect of the Judge's assessment bringing her mandate within the exceptions to the second-appeal rule
The appellants did not point to any specific defect in the first appellate Judge's assessment or reasoning that would justify this Court's intervention into the factual base; the Judge had properly rejected contradictory evidence and fallen back on customary law.
Deceased's wishes as to burial
Evidence, oral and forensic, on the deceased's wishes was contradictory and rightly rejected; wishes though not binding should be given effect where possible
Rival forensic examiners reached opposite conclusions on the will's signatures, and oral testimony was one word against another. The Judge rightly discounted both and turned to customary law, consistent with Apeli v Buluku that wishes are given effect only so far as practicable.
Application of Akamba Customary Law
Customary law was properly invoked; nothing in the Akamba custom applied was repugnant to justice, morality or the Constitution
Before applying customary law the courts had to ensure it met the thresholds in section 3(2) of the Judicature Act and Article 2(4) of the Constitution, and proof per section 51 of the Evidence Act. The Court found nothing repugnant in the custom applied by the Judge.
Who bears the mandate to bury
Both sets of children were legally closest to the deceased with no primacy; absent proof of greater closeness, the firstborn son may spearhead burial and the court may direct the place of burial
Customary law recognises those closest to the deceased - spouse, children, parents, siblings - but the right is not automatic and depends on demonstrated closeness in life. Where the legally closest cannot agree, the court may intervene and direct the place of burial.
Place of burial
The Judge's choice of the ancestral home, Mwingi/Nzeluni/318, was well-founded in Akamba Customary Law and the facts and unassailable
The ancestral land was registered in the deceased's name, contained family graves including his parents, first wife and two sons, had developments and would remain accessible to the whole family, unlike the private land at Migwani registered in a deceased son's name.
Legal principles established
#- On a second appeal the Court confines itself to matters of law unless matters were considered that should not have been, matters that should have been considered were omitted, or the decision is perverse
- Customary law applies only where it is not repugnant to justice and morality under section 3(2) of the Judicature Act or repugnant to the Constitution under Article 2(4)
- A person claiming the right to bury a deceased must demonstrate closeness to the deceased during his or her lifetime; conduct can extinguish that right
- There can be no property in a dead body; a person cannot dispose of his body by will, though his wishes should be given effect as far as possible
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs of the appeal; each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Family Division
- HCCA No. 7 of 2016
- Jurisdiction invoked
- Second appeal under the Court's appellate jurisdiction (section 78 of the Civil Procedure Act framework); confined to matters of law
Relief refused
#Appellants' prayer to be vested with the mandate to bury the deceased at Mbakini
Evidence on the deceased's wishes was contradictory and rightly rejected; Akamba Customary Law and the facts supported burial at the ancestral home
Costs of the appeal against the respondents
Court considered the relationship between the parties
Costs
No order as to costs of the appeal; each party will bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
customary law applies where it is neither repugnant to justice and morality by dint of section 3(2) of the Judicature Act or repugnant to the spirit of the Constitution of Kenya as provided for in Article 2(4) of the Constitution of Kenya, 2010.
There can be no property in a dead body. A person cannot dispose of his body by will.
a person claiming a right to bury a deceased person must be one who has demonstrated to the satisfaction of the court to have been close to the deceased person during his or her lifetime.
The upshot is that this appeal lacks merit and is accordingly dismissed. In the circumstances of this case, and considering the relationship between the parties herein, there will be no order as to costs of this appeal. In other words, each party will bear own costs.
Issues in the judgment
#Conflicting dates for the High Court judgment
Inconsistent citation years for Apeli v Buluku
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muumbo & another v Muumbo & 2 others", Case Analysis (2022). Civil Appeal 373 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/568/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.