https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10631

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVI APPEAL NO. E029 OF 2025** PATRICK OMONDI BUNDE…………**…………APPELLANT** **VERSUS** **EDGAR MARVIN OCHIENG ONDURU ........ 1ST RESPONDENT** **ALEXANDER OYIER ONYANGO ............... 2ND RESPONDENT** **STEPHEN JUMA ONYANGO ......................3RD RESPONDENT** **(Being an appeal from the judgement and resultant decree of the Magistrate’s Court at Bondo (Hon J.P Nandi (SPM)) dated 17th December 2024 in Civil Case No. E59B of 2022)** **BETWEEN** **PATRICK OMONDI BUNDE………………………….PLAINTIFF** **VERSUS** **EDGAR MARVIN OCHIENG ONDURU ........ 1ST RESPONDENT** **ALEXANDER OYIER ONYANGO ............... 2ND RESPONDENT** **STEPHEN JUMA ONYANGO ......................3RD RESPONDENT** **JUDGEMENT** 1. This is a first appeal arising from the Judgment and Decree of the Bondo Senior Principal Magistrate’s Court in Civil Case No. E59B of 2022 delivered on 17th December 2024. The trial court dismissed the Appellant's suit with costs to the 1st and 2nd Respondents finding that the Appellant had failed to prove the existence of a customary marriage between the deceased, Syprosa Auma Ogonda (hereinafter "the Deceased"), and the Appellant's late father Richard Onduru Bunde. 2. Aggrieved by the wholesale decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 2nd April 2025 wherein they raised the following grounds of appeal namely; - 3. THAT the trial court failed to properly evaluate the evidence adduced on the issue of dowry as evidenced by the plaintiff's witnesses arriving at the wrong conclusion and an error in both fact and law. 4. THAT the trial court failed to consider and analyse the plaintiff's submissions resulting in a reversible error in fact. 5. THAT the trial court failed to analyse the evidence as adduced thereby resulting in the dismissal of the suit a reversible error. 6. THAT the trial court failed to establish the unrebutted testimony from the plaintiffs witnesses an error in fact. 7. THAT the trial court failed to consider the 3rd defendants testimony and documents collaborated the plaintiff's evidence on the key issues at trial thereby an error in both fact and law. 8. THAT the trial court failed to analyse the evidence in totality resulting in the wrong finding that there was no marriage between Bunde and Syprose thereby resulting in dismissal of the suit an error in fact. 9. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See **Selle vs Associated Motor boat Co. Ltd [1968] EA 123.** 10. The dispute centers on the marital status of the Deceased who passed away on 24th February 2013 and was interred shortly thereafter on land parcel SOUTH SAKWA/MIGWENA/13. 11. The Appellant suing as the legal representative of the Estate of Richard Onduru Bunde asserts that the Deceased was his stepmother and was lawfully married to his father under Luo Customary Law. Consequently, he contends her burial on the disputed land belonging to the family of the late Aggrey Opang Onyango was culturally offensive and unlawful. He prayed for declarations of marriage, a mandatory order for exhumation and reburial at Nyalenda, Kolwa West within Kisumu County next to his father's grave. 12. 1st Defendant (the biological firstborn son of the deceased) and the 2nd Defendant (brother to the late Aggrey Opang Onyango) strongly opposed the suit. They asserted that the deceased was never married to anyone else except Aggrey Opang Onyango. They produced a sworn Affidavit of Marriage executed by Syprosa herself in 2006 confirming this marriage. They stated that she was buried lawfully according to cultural norms on her husband’s family land where her biological children and family had no issue with her resting place. 13. The 3rd Defendant (another brother of Aggrey Opang) supported the Plaintiff. He testified that his late brother Aggrey was never married to Syprosa that he had previously obtained a High Court injunction in 2013 to stop the burial (which was overtaken by events before service) and agreed that her burial on the suit land had no cultural basis. 14. In a judgment delivered on 17th December 2024, the trial Magistrate (Hon. J.P. Nandi) dismissed the Plaintiff's suit in its entirety. 15. Patrick Omondi Bunde **(PW1)**,The witness testified that he was the Plaintiff in the case and a resident of Kolwa, Kisumu County. He stated that his late father, Richard Onduru Bunde had married the deceased, Syprosa Auma Ogonda as his second wife under Luo customary law. He testified that the deceased passed away on 24th February 2013 and was subsequently buried on land parcel South Sakwa/Migwena/1346. He asserted that the land belonged to the family of the late Aggrey Opang Onyango to whom the deceased was never married. He testified that his father died on 31st August 2008 and was buried in Nyalenda, Kolwa West. He informed the court that the deceased should be exhumed and reburied next to his father’s grave in Nyalenda as keeping her buried on the 1st Defendant’s family land was a taboo under Luo customs. Under cross-examination, the witness admitted that he did not produce any marriage certificate or dowry agreement to prove the marriage between his father and the deceased. He further admitted that the name of the deceased Syprosa was completely omitted from his father’s funeral program and obituary in 2008 as one of his surviving wives. He admitted that he had not visited the deceased when she was hospitalized in Nairobi in 2004 and that he only found out about her death in 2013 long after she had already been buried. 16. John Okeyo Bunde **(PW2),** The witness testified that he was the paternal uncle of the Plaintiff. He stated that he was present when negotiations for the customary marriage between Richard Onduru Bunde and Syprosa Auma Ogonda took place. He testified that their family paid three head of cattle and a goat as dowry to the deceased’s family in Gem. He asserted that the deceased lived with Richard Bunde as his wife and that they had children together. Under cross-examination, the witness admitted that he was a young boy at the time the alleged dowry negotiations took place and did not actively participate in the discussions. He admitted that he had no written receipt or customary agreement showing that the livestock was handed over or accepted by the deceased’s family. 17. Caleb Ochola **(PW3),** The witness testified that he was a relative of the Bunde family and a resident of Nyalenda. He stated that he knew Syprosa Auma Ogonda as the second wife of Richard Onduru Bunde. He testified that he assisted in driving the dowry animals to the home of the deceased’s parents in Gem. He stated that to his knowledge the deceased was never married to Aggrey Opang Onyango. Under cross-examination, the witness admitted that he could not remember the exact year the animals were driven to Gem. He also conceded that he was not present inside the house when the dowry negotiations were being concluded and could not verify who signed the customary agreements if any existed. 18. Edgar Marvin Ochieng Onduru **(DW1)** The witness testified that he was the 1st Defendant and the biological firstborn son of the deceased, Syprosa Auma Ogonda. He stated that his mother was lawfully married to the late Aggrey Opang Onyango. He testified that they lived together as a family on land parcel South Sakwa/Migwena/1346 which was his late father’s family land. He produced a certified copy of a sworn Affidavit of Marriage executed by his late mother in the year 2006 in which she explicitly declared that she was married to Aggrey Opang Onyango. He testified that his mother was buried peacefully on 9th March 2013 on her matrimonial home with the consent of her children, her maiden family and local elders. He stated that the Plaintiff’s suit was motivated by malice and a desire to interfere with their family land. Under cross-examination, the witness denied that his mother was ever married to Richard Onduru Bunde. He stated that his mother never lived in Nyalenda, Kisumu and that her children had always recognized Aggrey Opang Onyango as their father. 19. Alexander Oyier Onyango **(DW2),** The witness testified that he was the 2nd Defendant and a brother to the late Aggrey Opang Onyango. He stated that the suit land South Sakwa/Migwena/1346 belonged to their late father and that Aggrey Opang was entitled to a portion of it. He testified that Syprosa Auma Ogonda lived on the land as Aggrey's wife and that she constructed her home (*ligala*) there. He testified that upon her death in February 2013, the family of Aggrey Opang and the deceased’s maiden family coordinated her burial and she was laid to rest in accordance with Luo customs on her husband’s land. Under cross-examination, the witness maintained that the 3rd Defendant Stephen Juma Onyango was acting out of family malice in supporting the Plaintiff. He testified that the 3rd Defendant’s previous attempt to stop the burial in 2013 via a High Court injunction was dismissed and overtaken by events 20. Stephen Juma Onyango **(DW3),** The witness testified that he was the 3rd Defendant and a brother to the late Aggrey Opang Onyango. He testified in support of the Plaintiff's case. He stated that his late brother Aggrey was never married to Syprosa Auma Ogonda and that she had no right to be buried on land parcel South Sakwa/Migwena/1346. He testified that in March 2013, he had filed a suit at the High Court in Kisumu and obtained an injunction to stop her burial but the 1st and 2nd Defendants rushed and buried her before the order could be served. He agreed that her remains should be exhumed and moved to her rightful husband’s home in Kisumu. Under cross-examination, the witness admitted that he did not live on the suit land and had been in a long-standing land dispute with his brothers. He admitted that the deceased’s biological children did not support the exhumation and wished for their mother to remain buried where she was. 21. Jane Atieno Otenda **(DW4),** The witness testified that she was the biological sister of the deceased, Syprosa Auma Ogonda. She testified that she was surprised to find her name listed as a witness for the Plaintiff in the case. She categorically disowned the witness statement filed under her name by the Plaintiff’s advocates stating that she had never signed it, had never met the Plaintiff's advocates, and that the signature on the document was a forgery. She testified that her sister, Syprosa was married to Aggrey Opang Onyango and not to Richard Onduru Bunde. She stated that their maiden family recognized Aggrey Opang as their brother-in-law and that they participated fully in her burial on the suit land in Migwena. She requested the court to reject the Plaintiff's claim to exhume her sister's remains. 22. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 23. It was submitted that the appeal was triggered by the decision of Honorable J. Nandi delivered in Bondo and was pursuant to the memorandum of appeal as filed before the court and as contained in the record of appeal. It was pointed out that at page 16 of the record of appeal was a document from the state bearing the picture of the 1st Respondent which clearly stated that he was the son of Onduru Richard Bunde and identified the clan as Kanyakwar and the family as Jokanyagudi. The Appellant noted that at the trial, it was established that the 1st Respondent was an adult of sound mind and disposition and argued that the starting point was a revelation that Onduru Richard Bunde and Syprose Auma Ogonda were not strangers to each other meaning any testimony along contrary lines must surely be false. 24. The Appellant stated that the court would be taken through the procedures of marriage that Onduru Richard Bunde undertook. It was argued that if the son of Syprose Auma Ogonda submitted information to the state listing the two as mother and father, it served as a corroboration of evidence that there was at the very least a possibility of the marriage; the Appellant intended to go further and show that it was not merely probable but indeed the reality. The Appellant raised the question of where a widow was to be buried questioning whether it was proper for the burial grounds to be in a foreign land clan-wise and asserted that it was improper as would be demonstrated. Reference was made to the passage contained in Genesis 2:23 which states that this is now bone of my bones and flesh of my flesh and she shall be called woman for out of man she was taken. 25. It was argued that the intimate relationship between a man and a woman transcends life and that Syprose Auma Ogonda did not stop being the widow to the late Onduru Richard Bunde. The Appellant contended that the rights and customary privileges were denied to the widow after her death and that the Respondents were to blame, adding that the record would show the evidence was sufficient to right the wrongs inflicted by the Respondents. In conclusion of the introduction, the Appellant invited the court to set aside the judgment delivered and challenged therein and instead proceed to grant the prayers in the amended plaint as prayed. 26. The Appellant submitted that the role of the court with regard to the present dispute was firmly established and shared a number of authorities to that effect. The court in **Gitobu Imanyara & 2 others v Attorney General [2016] eKLR was cited**, where it was held that an appeal to that Court from a trial by the High Court is by way of retrial and the principles upon which the Court acts are well settled, meaning the court must reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it has neither seen nor heard the witnesses and making due allowances in that respect. The case of **Peters v Sunday Post Ltd [1958] EA 424** was cited, which held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved or had plainly gone wrong, the appellate court will not hesitate so to decide. In **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2018] eKLR** the court was reminded of its primary role as a first appellate court namely to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. 27. It was noted that the record of appeal was before the court as a mandatory document and the Appellant presumed that the court was confined to the record of appeal when determining the matter regarding what the issues were before the trial court. The concept of parties being bound by their pleadings was invoked given a number of issues raised by the Plaintiff that were not specifically responded to either in pleadings or cross-examination. In **Galaxy Paints Company Limited v Falcon Guards Limited Court of Appeal Case Number 219 of 1998,** it was cited that issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court's determination. The case of **Libyan Arab Uganda Bank for Foreign Trade and Development & Anor v Adam Vassiliadis [1986] UG CA 1 was cited**, where the Uganda Court of Appeal approved the dictum of Lord Denning in **Jones v National Coal Board [1957] 2 QB 55** that in the system of trial evolved, the judge sits to hear and determine the issues raised by the parties not to conduct an investigation or examination on behalf of society at large. 28. The Appellant noted that the memorandum of appeal was contained at pages 5-6 of the record of appeal and broke it down into the following key issues for ease of submission: i. Whether there was a marriage between Syprose Auma Ogonda and Bunde. ii. Whether that marriage demanded that the widow be buried in line with the customs of the husband's community. iii. Whether the dismissal of the suit was an error 1. On the issue of whether there was a marriage between Syprose Auma Ogonda and Bunde. The Appellant pointed out that their submissions at page 163 commenced with a summary of the evidence from Stephen Oyaro which was largely unchallenged. The Appellant re-submitted the same asserting that the evidence was not totally analyzed and the submissions were not wholly considered. It was argued that the defense, specifically the 1st and 2nd Respondents attempted to show that the late Syprose was married to Aggrey Opang but did very little to none to defend that position in the face of the obliteration of that narrative by Stephen Oyaro. 2. The Appellant directed attention to page 78 of the record of appeal, where Stephen Oyaro’s signed witness statement was located and adopted as his testimony. 3. Regarding his knowledge of the parties, it was reported that Oyaro informed the court at page 78 that he personally knew the Plaintiff's father Richard Bunde and considered him his brother (first cousin) in the loose African description of relations, making the Plaintiff his son and that they were close neighbors geographically at the Reru home.Regarding how culturally inclined the late Richard Bunde was, it was reported that Oyaro informed the court that the deceased was a man who proudly embraced African traditions and ways of life in almost everything he did, especially within his family life. On the question of how many wives Richard Bunde had, it was reported that Stephen Oyaro uncontestably informed the court at page 78 that Mr. Richard Bunde had two wives, namely Syprose Adhiambo and Syprose Ogonda and that he had a good relationship with them as his in-laws (*"yuochena"*). 4. Regarding whether Syprose Ogonda was properly married, the witness Stephen Oyaro informed the court at page 78 that all the necessary and mandatory requirements leading to the marriage between Richard Bunde and Syprosa were later performed and that he participated in the said processes, key of which was the payment of dowry (*nyombo*) to their in-laws in Uyoma. h) It was noted that at page 79 of the record of appeal, the witness Stephen Oyaro went into detail regarding the livestock that were procured and how they were delivered and accepted by the in-laws clearly demonstrating marriage. On the role Syprosa played upon the death of Richard Bunde, page 80 provided the answer where Stephen Oyaro informed the court that in the year 2008 when Richard Bunde died, Syprosa was at the center of the funeral preparations and took her place as the widow. He added that the Uyoma in-laws also attended the funeral in support of the family and their daughter and that he was present at the funeral where he saw Syprosa Ogonda performing the rite of burying the husband. 5. The Appellant submitted that the cross-examination of this witness at page 200 of the record of appeal did not impeach the evidence adduced. The second witness analyzed was Aggrey Baston, whose primary witness statement at page 82 confirmed that all necessary and mandatory requirements leading to the marriage between Richard Bunde and Syprosa were performed and that he participated in the said processes, key of which was the payment of dowry (*Nyombo*) to his in-laws in Uyoma. 6. It was reported that Aggrey Baston indicated the dowry was taken to Syprosa's home and accepted with the symbolic act of returning the ropes that tied the livestock. At page 83, he informed the court that after being served food and drinks, they were given back the three (3) ropes used to tie the livestock to return with and they set off back to Seme via public transport. The ropes were handed over in the mother-in-law's house in the presence of Syprosa, her mother and an elderly man (uncle) standing in for Syprosa's father and were subsequently handed over to Mr. Bunde at home. It was further noted from the witness that a delegation left for Uyoma the next day after the dowry was accepted and that Syprosa became part and parcel of the community. 7. The Appellant stated that Amos Oyier Ondeje Anyango through his witness statement dated 16th March 2023 provided crucial and unchallenged insights supplying information that definitely showed Syprosa was married to Richard Bunde and not Aggrey Opang. It was argued that if there was a suggestion that Syprosa was in multiple relationships at one time, Oyier clearly showed she chose Richard Bunde, stating in his statement within the further supplementary record of appeal that in late 1998, Syprosa's husband came from Kisumu with a truck to collect her household belongings with the intention of relocating her and the children to Kisumu. The items were removed from the servant's quarters and she effectively moved from the compound in the presence of both Aggrey and the witness who even helped load the goods into the truck at around 11:00 AM. 8. It was noted that Oyier further testified that the last he heard of Syprosa Ogonda was when she passed away in 2013 and that one of Aggrey Opang's stepbrothers, Alexander Oyier and Emily Ondeje strangely spearheaded a conspiracy with Syprosa's son Edgar Ochieng Onduru to take her body to Opang's father's home at Wagusu in Bondo against the wishes of the larger Simeone Onyango family. This was strongly contested by some family members especially Stephen Juma Onyango who sought court orders to stop the burial. 9. Regarding the marital status of Aggrey Opang, Oyier stated that to his knowledge, Aggrey Opang died a bachelor and was never married least of all to Syprosa Ogonda. The Appellant argued that the proponent of the narrative that Syprosa was married to Aggrey came from an individual claiming to be her brother but who provided no proof of being a sibling. It was asserted that this individual was talented on generalities and clueless on particulars as confirmed by Lawrence Ogonda at page 204 of the record where he admitted failing to indicate details in his witness statement. The Appellant asked that this be compared to the Plaintiff's detailed evidence regarding dowry and customary processes. 10. It was argued that the evidence of Jane Atieno Otenda was largely contradictory given she was initially set to testify for the claimant but switched sides to the defendants. However, it was noted she told the truth on one item at page 205, testifying that she knew Richard Ondiri Bunde and that they went to his home for a vacation from Nairobi. The Appellant submitted that the narrative has always been that Syprosa was married to either Richard Bunde or Aggrey Opang and here it was learned that the household would leave Nairobi for Bunde's home and that he picked the family from Nairobi to his home in Kisumu. It was argued that obituaries within Aggrey Opang's home painted the picture that Syprosa was not a family member, which was an issue even when Aggrey Opang was alive. 11. The Appellant questioned whether Aggrey Opang was aware post-humously that he was married to Syprosa. It was argued that Edgar Marvin Ochieng Onduru, when unbiased acknowledged that Richard Bunde was married to his mother, and that page 17 of the record of appeal served as sufficient evidence of this. The Appellant questioned why Aggrey's wife would proceed on vacation to Richard Bunde's house describing the inconsistencies in the defense evidence as obvious and apparent. Attention was directed to page 88 for a further witness statement that was clear on the evidence and relations of the parties. It was submitted that evidence of a marriage between Aggrey and Syprosa was non-existent noting that at page 204 the witness confirmed he had not stated the word dowry in his statement. 12. The witness further stated that he did not mention what comprised the paid dowry and that the year of payment did not come to mind when recording the statement. On the question of whether Aggrey was married to Syprosa, the Appellant described the 3rd Defendant as a reliable and consistent witness. At page 206, the witness testified that Edgar Marvin Ondiri was not a son to his late brother, that he could not be a party to the burial planning because Syprosa was not married to his brother Aggrey, that Aggrey did not pay bride price to Syprosa and that Aggrey was his younger brother, an employee in his firm and did not have a wife. 13. Regarding Aggrey's own words on Syprosa's marital status, it was recorded at page 207 that Aggrey told him Syprosa was married and her husband was staying in Kisumu. The Appellant submitted that this evidence was in tandem with that of Amos noting that the 1st Defendant was part of the family when Richard Bunde went to collect them from Nairobi to Kisumu and no word of protest had come from him regarding that narrative. 14. The Appellant commented that the affidavit offered zero value to the subject matter. It was argued that it was not authenticated through a handwriting expert nor was the law firm in question called to authenticate that it was drawn by them and signed by the very Syprose who was the subject of the proceedings. The Appellant questioned what alternative evidence led the court to disregard the evidence from witnesses who testified to the issue of bride price paid by Richard Bunde. It was submitted that evidence from the parties including the 1st Defendant showed a relationship between Syprose and Richard that supported the narrative of a marriage between them. 15. The Appellant argued that the narrative driven by the defense had zero basis in fact and law and there was no evidence to suggest Syprosa was ever married to Aggrey Opang. It was submitted that the defense, while alleging a marriage was at pains to describe it and failed to satisfy that there was indeed any marriage between the two. The aspect of bride price was described as extremely important to any African customary marriage, a burden the Plaintiff discharged regarding the bride price paid by Bunde's family. 16. The case of **K.O & Another v J.O (2018) eKLR was cited, where Mrima J,** in dismissing the existence of a marriage held that marriage must be distinguished from a sexual relationship resulting in siring children and held that there was no marriage between the deceased and the respondent whether by statute, customs or the doctrine of presumption of marriage. The Appellant stated that the determination of the existence of the marriage must also be based on the satisfaction of Section 43 of the Marriage Act which provides that a marriage under this part shall be celebrated in accordance with the customs of the communities of one or both parties and that where the payment of dowry is required, a token amount shall be sufficient to prove it. 17. The court in **Kimani v Gikanga (1965) EA 735** was cited observing that customary law must be accurately and definitely established and the onus to do so must be on the party who puts forward customary law by calling evidence to prove the custom and relevant facts. It was argued that the dictates of custom were not in play as an issue because all parties appeared to have agreed on what the customs were and whether they were applicable. **In BCC v JMG [2018] eKLR,** Justice Majanja held that attendance of a funeral did not amount to recognition of a marriage but was evidence that the parties were cohabiting at the time and were in some relationship. The court in **In re Estate of Daniel Olal Nyawawa (Deceased) [2019] eKLR** was cited describing the rituals (*Yedo Chego*) that signify the cementing of a relationship when a girl moves to her new home. The court also observed that customary law is a fact needing proof and cannot be presumed citing **Mwagiru v Mumbi (1967) E.A. 639 and Titus & Another v Nangurai.** The Appellant argued that the trial court was taken through the rituals that the marriage between Bunde and Syprosa underwent without any rebuttals from the defense, questioning how this evidence was disregarded. Rawal (J)in **Re: Estate of Wakaba (2008) 1 KLR (G&F) pg 328** was cited, which held that customary law should be interpreted with flexibility and breadth of view and that even where parties fail to fulfill all strict ingredients, a court may nevertheless find that a valid marriage exists. The Appellant submitted that a flexible interpretation of Luo customary laws could only lead to the definite conclusion that a valid marriage existed between Bunde and Syprosa based on the evidence. It was argued that the 1st and 2nd Defendant's own witnesses confirmed they carried themselves as husband and wife and the testimony from Jane Atieno Otenda regarding visiting Mr. Bunde's residence confirmed a relationship. 18. It was noted the 1st Defendant presented himself as the son of Mr. Bunde and Syprosa Atieno against the backdrop of a marriage between the parents as contained in the registration details. 19. The Appellant offered the narrative to show there was never a claim that Aggrey was married to Syprosa, highlighting the following from the cross-examined evidence of Amos Oyier Ondeje Onyango; That he started working in Nairobi around 1990 and shared a one-room residential accommodation with close relative Aggrey Opang Onyango. That in 1992, a lady named Syprosa Ogonda frequently visited a neighbor named Eunice Adhiambo hawking wines and spirits obtained from AFCO facilities where she worked. That they later learned Syprosa was staying in Buruburu Phase 1 and she sometimes invited them to buy drinks introducing her two children, Marvin Ochieng Onduru and Shalot Onduru. That he knew Syprosa was married to a man in Kisumu Nyalenda according to her own introduction and that the witness later moved to Dandora but kept frequent visits to Aggrey in Kariobangi South. 20. It was argued that the testimony clearly showed Syprosa fell on hard times and was evicted prompting Aggrey to take her into the servant's quarters out of sympathy, leading to a child being sired. The Appellant noted the defendants did not challenge this arrangement. Another passage from the witness statement was highlighted stating that in late 1998, Syprosa's husband came with a truck to collect her belongings and relocate her and the children to Kisumu and that the witness helped load the household goods in Aggrey's presence. The Appellant questioned why Aggrey would accept this relocation and why Syprosa would leave willingly if they were husband and wife noting that the child sired by Aggrey was sent back to him after being rejected by Mr. Bunde while Syprosa continued living with Bunde. 21. It was submitted that if the trial court was in doubt, Aggrey's surrender and Syprosa's willingness to move with Bunde provided an emphatic answer that a marriage existed. Regarding questions raised about Syprosa missing from Mr. Bunde's eulogy, the Appellant argued that the surrounding circumstances explained it but maintained the evidence on record showed she was the widow for all purposes and intents. 22. The Appellant believed that having subjected herself to a life of marriage under Luo customary laws and having embraced Mr. Bunde as her husband, her burial rites had to conform to the traditions she accepted to be bound under. It was noted that Luo customs are a way of life, marriage and burial pointing to the unchallenged evidence of Stephen Ochieng Oyaro that when Richard Bunde's first wife passed away in 1998, the Uyoma in-laws attended the burial at Kisumu Nyalenda Kachok to mourn with the family bringing foodstuffs. The Appellant questioned why her way of life which was firmly rooted in Luo Customary Laws, should be denied to her in her death and afterlife. From the foregoing, the Appellant submitted and asked the court to make the following findings; That Syprosa Auma Ogonda was the wife to Richard Onduru Bunde; That Syprosa Auma Ogonda was entitled to be buried pursuant to the Luo customary law and Traditions.; That the burial of Syprosa Auma Ogonda on land parcel South Sakwa/Migwena/1346 on the basis that she was the wife to Aggrey Opang Onyango had no basis and was contrary to the Luo customary laws. The court was asked to note that the 1st Defendant took the name Onduru which belongs to Richard Onduru Bunde and that the African implication of taking up this name was obvious as to how they considered him in relation to their mother. 23. The Appellant submitted that the question of exhumation was not a light one but was very necessary in the present case. The court in **Apeli v Buluku (1980) eKLR** was cited which considered that the primary function of the court is to keep faith with the dead and ensure that the supposed wishes of the deceased to remain undisturbed are respected if reasonably possible. The Appellant acknowledged that the dead ought to be let to rest but questioned if it was possible to rest in the face of a heinous burial that disregarded everything the deceased stood for during her lifetime. The Appellant noted that the court in **Apeli v Buluku** was swayed by the fact that the deceased had expressly indicated a wish to be buried in Bungoma and not Bunyore. The Appellant prayed that the obvious fraud in burying the deceased as the wife of Aggrey Opang would similarly sway the court arguing that Aggrey had cooperated when Mr. Bunde came to take his wife, publicly pronouncing that she was someone else's wife a stance never altered in subsequent family eulogies. The Appellant questioned how she could be eternally recognized as the wife of Aggrey Opang when the realities showed she was the wife and widow to Mr. Bunde. 24. It was asked how this anomaly could be rectified without exhumation and reburial in the proper manner. Further passages from **Apeli v Buluku** were cited regarding the High Court of Kenya exercising general jurisdiction to grant such an order even in the absence of a Christian ecclesiastical court. It was further observed from the precedent that the most important rule is to give effect to the wishes of the deceased where they are not contrary to custom, general law, public policy or safety granting the High Court general discretion to order the removal of remains. 25. The Appellant argued that her wish was clear when she moved with Mr. Bunde to Kisumu as his wife noting that within the African setting, a wife becomes part and parcel of the husband's community, extending to the burial ground. The court was asked not to forget that the Plaintiff was the personal representative of the estate of the deceased without any fight or protest from the defendants. The court in **Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another (1987) eKLR** was cited, which observed that the decision as to where and how an adult Luo will be buried rests with the clan and that customs dictate an adult Luo must be buried next to his father's house if he dies before establishing a home. The Appellant noted that Edgar Marvin's details identified the clan as Kanyakwar, the family as Jokanyagudi and the village as Nyalenda Kachok. 26. In the ***S.M. Otieno*** case, it was cited that under Luo customary law, a wife on marriage becomes part and parcel of her husband's household and a member of his clan and that the clan takes charge of the burial. In **Osinda Katumba Kamau v Annah Ngendo,** the court similarly noted that the principle outlined in the *Otieno* case applies, meaning the wife becomes part of the husband's clan. In **Joseph Ontweka & 3 others v Zipporah Masese Ondieki (Civil Appeal No. E0692 of 2025),** the court upheld that a burial be conducted in line with Kisii customs while allowing the widow to bury her husband away from ancestral land. 27. Regarding exceptions to exhumation, the decision of Thande J in **Re Estate of Jacob Mwalekwa Mwambewa (Deceased) [2018] eKLR** was cited, holding that the pursuit of truth overrides the supposed wishes of the deceased when family and cultural discomfort must give way to establishing facts. Onyancha J in **HCK v EJK [2008] KEHC 3895 (KLR)** was cited, stating that while courts are slow to order disinterment, they will not hesitate to do so in suitable imperative cases avoiding placing fetters on discretionary power. In the present matter, the Appellant argued that the clan was denied an opportunity to conduct the funeral of the widow of their son leading to an automatic finding that the burial was not done in accordance with Luo customary laws because it was conducted by a strange clan. The Appellant raised the lingering question as to what the consideration and thought process was in burying the late Syprosa Ogonda as the wife of Aggrey Opang especially taking into consideration the opposition by the 3rd Defendant. 28. It was asked why the wishes of Aggrey Opang were ignored. It was asked why the wishes of Mr. Bunde were ignored. It was asked why the wishes of Syprosa Ogonda were ignored. It was asked why the Kanyakwar clan and the Jokanyagudi family were ignored in the special matter of the burial of Bunde's widow. The Appellant concluded that the burial site was not the proper one noting a dispute even among the defendants as to why she was buried there leaving exhumation as the only remedy. From the foregoing, the Appellant submitted that the following prayers were ripe for granting; A mandatory order do issue that the body and/or remains of the late SYPROSA AUMA OGONDA be exhumed and/or removed from land parcel no. South Sakwa/Migwena/1346; That the exhumation and/or removal of the body and/or remains of the late SYPROSA AUMA OGONDA be executed and/or supervised by the OCS Bondo police station and Siaya public health officer; That the 1st, 2nd and 3rd Defendants be ordered to bear the costs of the exhumation, reburial and/or interment of the body and/or remains of the late Syprosa Auma Ogonda at Nyalenda, Kolwa West location within Kisumu County; That the body and/or remains of the late Syprosa Auma Ogonda be buried and/or interred at Nyalenda Village - Kolwa West location within Kisumu County. 29. It was submitted that the Plaintiff's pleadings and the evidence tendered clearly showed there was a marriage between Bunde and Syprosa. It was argued that the defendants confirmed this union indirectly through documentary evidence and by confirming that Syprosa would travel from Nairobi to the Bunde ancestral home. The Appellant noted that government records procured by Marvin, a defendant indicated an acknowledgment that the two were regarded as parents and conclusively as husband and wife. It was argued that once the marriage is confirmed and a declaration ensues, the other prayers must flow as a matter of course including the exhumation of the deceased. The Appellant reiterated that exhumation was very necessary given the facts and submitted evidence. It was asserted that damages accrued by virtue of the Respondents' behavior. The Appellant invited the court to remedy the error of dismissing the suit with costs. 30. Given the dismissal of the suit, the Appellant prayed that the amended plaint be allowed as prayed and that the present appeal be allowed. On the question of damages as prayed in the amended plaint, the Appellant relied on the submissions before the trial court where damages had been estimated at Kenya Shillings Five Million (Ksh 5,000,000/- The Appellant equally prayed for the costs of the appeal. 31. The Appellant respectfully submitted that the trial court was in error in dismissing the amended plaint. It was maintained that the appeal had merit and ought to be allowed as submitted. The submissions were thus concluded. 32. It was submitted that these submissions were filed on behalf of the 1st and 2nd Respondents in firm opposition to the Appellant's Appeal, the Memorandum of Appeal dated 2nd April 2025 and the Appellant's written submissions filed in support thereof. The Respondents stated that the Appeal invites the Honourable Court to disturb a careful and evidence-based Judgment by the learned trial Magistrate dismissing the Appellant's claim for declarations of customary marriage and for the drastic order for exhumation and reburial of the remains of the late Syprosa Auma Ogonda, more than eleven (11) years after her burial. It was argued that at the heart of the Appeal was not a demonstrated error of law but the Appellant's dissatisfaction with the trial Court's factual findings. The Respondents contended that the Appellant asks the Honourable Court to prefer selective testimony over the totality of the record, to ignore the deceased's own sworn declaration and to convert conjecture and allegations of dowry into proof of a Luo customary marriage; they submitted that this invitation should be declined. 33. The Respondents submitted that the learned trial Magistrate properly identified the central issues, evaluated the evidence, applied the correct burden and standard of proof and reached the only lawful conclusion open on the record: that the Appellant had not proved that Syprosa Auma Ogonda was married to Richard Onduru Bunde and had not furnished any sufficient basis to justify exhumation. 34. It was noted that the Appellant filed suit as the alleged legal representative of the Estate of the late Syprosa Auma Ogonda claiming that Syprosa was the wife of his late father,Richard Onduru Bunde; that she had been wrongly buried on Land Parcel No. SOUTH SAKWA/MIGWENA/1346; and that her remains ought to be exhumed and reburied at Nyalenda, Kolwa West Location, Kisumu County. The Respondents reported that the 1st and 2nd Respondents resisted the claim arguing that Syprosa Auma Ogonda was married to Aggrey Opang Onyango, that she was buried where her late husband had proprietary and beneficial interests and that the Appellant had no sufficient legal proximity, factual basis or equitable standing to disturb a burial that had taken place in 2013. 35. It was stated that the learned trial Magistrate heard the parties, considered their pleadings, oral testimony, documentary evidence and written submissions and dismissed the suit with costs to the 1st and 2nd Respondents finding that the Appellant had not proved marriage between Syprosa and Richard Onduru Bunde and had not convinced the Court to warrant exhumation. The Respondents noted that the Appellant challenges that Judgment on six broad grounds, principally alleging failure to evaluate evidence on dowry, failure to consider submissions, failure to consider unrebutted evidence, failure to appreciate the 3rd Respondent's evidence and an erroneous finding that there was no marriage. The Respondents stated they would demonstrate to the Lordship that the Appellant was not deserving of the prayers sought in the Appeal. 36. On the basis of the documents emanating from the Trial Court, the judgment of that Trial Court, the Memorandum of Appeal, and the Record, the Respondents submitted that the following issues form the crux of the matters for the Honourable Court's determination; Whether the Appellant has satisfied the threshold for Appellate interference with the trial Court's findings of fact; Whether the trial Court erred in finding that the Appellant failed to prove a Luo customary marriage between Syprosa Auma Ogonda and Richard Onduru Bunde; Whether the trial Court erred in declining to order exhumation and reburial of the remains of Syprosa Auma Ogonda; Whether the Appellant is entitled to the declarations, damages and costs sought. 37. The Respondents stated that while the Appellant correctly cites the duty of a first appellate Court to re-evaluate the evidence, that jurisdiction is not an open license to retry the matter merely because one party is unhappy with the result. It was argued that the first appellate Court reconsiders the evidence but gives due allowance to the trial Court which heard the witnesses, observed their demeanor and made findings on credibility. The case of **Selle and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1 E.A 123** was cited, which stated that the court must reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it has neither seen nor heard the witnesses and making due allowance in this respect. The case of **Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) was cited,** where Hon. Mativo J (as he then was) enunciated that a first appellate court has jurisdiction to reverse or affirm the findings of the trial court and that the judgment must reflect its conscious application of mind and record findings supported by reasons, coming into close quarters with the reasoning assigned by the trial court when reversing a finding of fact. The Respondents submitted that the trial Court was obligated to test evidence against pleadings, documents, probabilities, contradictions, burden of proof and the credibility of the witnesses and did indeed carry out this duty, meaning the Appellant has not met the threshold for appellate interference. 38. It was argued that the Appellant pleaded and sought a declaration that Syprosa Auma Ogonda was married to Richard Onduru Bunde which was the foundation of all consequential reliefs and that without proof of that marriage, the claim for exhumation, reburial, damages and costs necessarily collapsed. The Respondents stated that Sections 107, 108 and 109 of the Evidence Act place the burden on the person who desires the Court to give judgment as to any legal right dependent on the existence of facts which he asserts, meaning the Appellant bore the burden of proving the asserted customary marriage on a balance of probabilities. It was reported that the learned trial Magistrate was alive to the standard of proof and cited with approval the Court of Appeal decision in **Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 Others [2017] eKLR,** correctly appreciating that the more improbable or serious an allegation, the stronger the evidence required. Lord Nicholls' explanation in **In re H (Minors) [1996] AC 563** was highlighted to show the flexibility of the test on the balance of probabilities. The Respondents urged the Honourable Court to adopt this reasoning, stating that a declaration of customary marriage, especially as a gateway to exhumation thirteen years after burial, cannot rest on loose inference, nostalgia or clan preference but requires clear, cogent and consistent proof. 39. The Respondents submitted that the law on the proof of customary law is settled citing Kwach, JA in **Wambugi w/o Gatimu v Stephen Nyaga Kimani, 1992 2 KAR 292** (as cited in **Erastus Gichingiri Muhoro vs Gerishon Gichingiri Muhoro (2009) eKLR),** which held that where African Customary Law is neither notorious nor documented, it must be established by the party intending to rely on it through evidence of expert opinions. It was argued that the Appellant's attempt to sidestep this requirement by saying that the issue of customs and the dictates of custom were not in play is telling, as his entire suit depends on Luo customary marriage and burial rites, meaning he could not plead custom as the sword and avoid proving it as the burden. 40. The Respondents contended that Section 43 of the Marriage Act does not assist the Appellant as it specifies that a customary marriage is celebrated in accordance with the customs of the communities of the parties and does not abolish proof or state that dowry, identity records, cohabitation, children or funeral attendance are automatic proof of marriage without evidence that essential customary steps were undertaken. The Respondents submitted that the learned trial Magistrate correctly asked the real question of whether dowry or any other essential customary rite, was proved by credible evidence, to which the answer on the record was a resounding NO. 41. It was argued that the Appellant's complaint that the trial Magistrate failed to evaluate evidence on dowry is inaccurate as the Judgment considered the evidence of Stephen Ochieng Oyaro, Aggrey Barriston Mbukuli and others and found it insufficient. The Respondents listed material gaps in the alleged dowry narrative: there was no documentary proof of dowry, no clear evidence as to who received the animals, the persons allegedly involved in negotiations did not testify and the "main delegation" was never called. Most importantly, it was noted that the deceased's own brother, Lawrence Otieno Ogonda (DW3) denied that Richard Onduru Bunde paid dowry for Syprosa and denied acquaintance with the persons alleged to have delivered it. It was submitted that the Court was entitled to consider inherent improbabilities, pointing out that Stephen Ochieng Oyaro (PW2) stated he was born in 1974 yet alleged participation in a dowry payment in 1989 when he would have been about fifteen-sixteen (15-16) years old which entitled the trial Court to treat such evidence with caution. The Respondents countered the Appellant's assertions that the evidence was "unchallenged" or "unrebutted" stating that the defence squarely challenged the alleged marriage and dowry through direct evidence that Syprosa was married to Aggrey Opang Onyango and through Lawrence Otieno Ogonda's (DW2) testimony contradicting the alleged dowry payment. Therefore, the Appellant's case failed because the absence of dowry evidence did not meet the legal threshold. 42. The Respondents stated that the most powerful piece of evidence came from Syprosa Auma Ogonda herself via a statutory declaration produced in the record in which she affirmed that she was married to Aggrey Opang Onyango and had not been married before nor contracted a subsequent marriage. It was submitted that this declaration was corroborated by Edgar Marvin Ochieng, Alexander Oyier Onyango, Lawrence Otieno Ogonda and Jane Atieno Otenda, who all recognized Syprosa as the wife of Aggrey Opang Onyango. The Respondents argued against the Appellant's request to infer Syprosa's supposed wishes from allegations that she moved to Kisumu with Richard Onduru Bunde stating that this submission collapses against her own sworn declaration and that a Court should not replace a formal statement with speculative posthumous narratives constructed years later. They submitted that the trial Magistrate properly gave weight to the deceased's declaration as a faithful evaluation of the record. 43. The Respondents argued that the Appellant's submission that government records identifying Richard Onduru Bunde as a father confirm marriage confuses parentage, names and administrative registration with marriage. It was stated that even if a child bears a name or an identity record reflects a particular father, that does not prove that a customary marriage existed between the parents noting that the circumstances relating to Richard Bunde's name appearing in DW1's documents were explained by DW1 himself during re-examination. The Respondents noted that the trial Magistrate correctly relied on **K.O & Another v J.O [2018] eKLR** for the proposition that marriage must be distinguished from a sexual relationship resulting in children, and that the Court was right to reject the Appellant's evidential shortcuts. 44. The Respondents disputed Ground 5 of the Appeal, stating that the record shows the 3rd Respondent (who testified as DW5) supported exhumation but was not a neutral witness whose evidence automatically bound the 1st and 2nd Respondents or the Court. It was reported that the 3rd Respondent had his own dispute concerning the land in question and had previously filed proceedings touching on the burial in Kisumu HCCC No 6 of 2013 making the current suit bear the character of a proxy dispute because an order of exhumation would benefit the 3rd Respondent in the land contest. The Respondents submitted that the trial Court was entitled to weigh the 3rd Respondent's evidence against the deceased's statutory declaration, the evidence of her biological son, brother, cousin and brother-in-law and the objective fact that her biological children had no objection to the place of burial and properly rejected his position. In totality, they submitted that the Appellant did not prove a customary marriage. 45. The Respondents noted that the Appellant seeks an intrusive remedy: the exhumation of remains interred for over a decade. They stated that courts have consistently held that exhumation is not granted as a matter of course and that the dead are to be left undisturbed unless compelling circumstances are shown. It was reported that the trial Magistrate relied on the Public Health Act and authorities including **Hellen Cherono Kimurgor vs Esther Jelagat Kosgei [2008] eKLR, Re Matheson (Deceased) [1958] 1 All ER 202, and In re Estate of Julius Kiragu Kiara (Deceased) [2018] eKLR**. The Court of Appeal decision in **Nazerali v Regional Criminal Investigation Office Coast & 4 others (Criminal Appeal 122 of 2022) [2023] KECA 85 (KLR)** was quoted to underscore that the primary function of the court is to keep faith with the dead. The Respondents argued that the Appellant failed to demonstrate exceptional circumstances, as he has not shown that the burial was unlawful, has not proved marriage to Richard Onduru Bunde, has not proved any essential rites were omitted, has not shown the deceased wished to be buried elsewhere and has not shown that her biological children object. In the absence of proof of marriage, the prayer for exhumation had no legal anchor and was correctly rejected. 46. The Respondents submitted that Kenyan courts emphasize legal proximity in burial disputes citing **Ruth Wanjiru Njoroge v Njeri Njoroge & Another [2004] eKLR** to show that the person closest to the deceased in legal terms has the superior claim and colour of right of burial ahead of any other claimant. It was pointed out that the Appellant was not a biological child of Syprosa admitted under cross-examination that he had no documentary evidence showing she was married to his father, did not visit her during her illness and only learned of her death years later. By contrast, the Respondents stated that the 1st Respondent is the biological son of the deceased, the 2nd Respondent is the brother-in-law of the deceased through Aggrey Opang Onyango and Syprosa's biological children did not object to her resting place, meaning the doctrine of legal proximity overwhelmingly supported the 1st and 2nd Respondents. 47. The Respondents argued that the Appellant's reliance on **Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another** and other decisions does not assist him because the foundational fact was not established: he did not prove that Richard Onduru Bunde was Syprosa's husband. They distinguished cases where exhumation was ordered for paternity or proven wishes noting that no paternity issue requiring DNA was before the Court and no proven wish of Syprosa was established contrary to her statutory declaration supporting marriage to Aggrey Opang Onyango. Regarding the invocation of "flexibility" in customary law, the Respondents argued that flexibility does not mean prooflessness or permit a party to manufacture a marriage where essential evidence is absent. 48. The Respondents submitted that the Appellant's submissions proceed on several flawed premises: First, the claim that the defence did not rebut the marriage is demonstrably false, as the entire defence was that Syprosa was married to Aggrey Opang Onyango and not Richard Onduru Bunde. Second, against the Appellant's argument that his witnesses' testimony should be decisive, the Respondents submitted that a Court is not a passive recipient of testimony and must interrogate consistency, probability, corroboration and legal sufficiency. Third, the Respondents argued that the complete non-recognition and absence of Syprosa from Richard Onduru Bunde's eulogy was a material piece of evidence and a legitimate factor for the trial Court to consider. Fourth, the Appellant's claims regarding the "wishes" of the parties and the clan were described as rhetoric rather than evidence given that the only formal expression attributable to Syprosa is her statutory declaration recognizing Aggrey Opang Onyango. Fifth, the Respondents described the Appellant's claim for Kshs. 5,000,000.00/- as unsupported and disturbing, characterizing it as an attempt to monetize a deeply sad sequence of family events and convert a burial dispute into a commercial opportunity. They submitted that once the Appellant failed to prove the customary marriage and failed to justify exhumation, there remained no foundation for damages. 49. The Respondents further submitted on this claim that the Appellant is not the biological son, demonstrated no proximate relationship, did not nurse or care for her and came forward many years later to disturb an existing grave and seek a monetary award. The claim for an extraordinary sum is wholly illogical because damages must be anchored in a known cause of action and connected to a legally recognizable injury, which the Appellant failed to show. The claim is made worse by the nature of the dispute, which deals with the resting place of a deceased person rather than a commercial business transaction, revealing a glaring contradiction in the Appellant's portrayal of cultural duty versus a demand for millions of shillings. Courts must be slow to encourage such claims to prevent burial disputes from becoming instruments of extortion and opportunism. The claim for damages is unproved, unconscionable and was properly dismissed, as no party should be permitted to seek profit from a disturbance they themselves created. 50. In conclusion, the Respondents submitted that as warned in **Peters v Sunday Post Ltd [1958] EA 424,** an Appellate Court will not lightly interfere with findings of fact unless the trial court failed to appreciate the evidence, misdirected itself or reached an unsupported conclusion. 51. Similarly, **Selle v Associated Motor Boat Co. Ltd [1968] EA 123** holds that a first appellate court must bear in mind that it did not see or hear the witnesses and the Appellant has not brought himself within that narrow window of interference. At the heart of the Appeal is a decisive failure to prove the alleged Luo customary marriage, which must be pleaded, particularized and proved. As held in **Kimani v Gikanga [1965] EA 735**, a party who relies on customary law must prove it as a fact, a burden the Appellant did not discharge. Once the alleged marriage collapsed for want of proof, everything built upon it collapsed, leaving the prayers for exhumation, reburial, damages and costs without legal or factual foundation. This is a plea to disturb the resting place of a deceased person who has lain in peace for thirteen years and the dignity of the dead, peace of the living and finality of burial all demand restraint. The learned trial Magistrate exercised that restraint and kept faith with the evidence. In the end, the Appellant asks the Honourable Court to move a grave on the strength of an unproved marriage and that invitation must be declined. 52. The Respondents therefore respectfully prayed that the Honourable Court be pleased to dismiss the Appeal in its entirety with costs to the 1st and 2nd Respondents and uphold the Judgment of the Senior Principal Magistrate's Court at Bondo delivered on 17th December 2024. 53. Having analyzed the pleadings, the record of appeal, the trial court's judgment and the written submissions filed by the parties, this Court distills the following issue for determination is whether the Appeal has merit. 54. As a first appellate court, this Court is guided by the classic principles set out in **Selle and Another v. Associated Motor Boat Company Ltd & Others [1968] 1 E.A 123**. The Court is under a duty to re-evaluate, re-examine and analyze the evidence on record to arrive at its own independent conclusions. However, this power must be exercised with a caveat: the appellate court must keep in mind that it did not have the opportunity to see or hear the witnesses live, observe their demeanor or make immediate assessments of their credibility. 55. This principle was further enunciated in **Peters v. Sunday Post Ltd [1958] EA 424** and restated by Mativo J (as he then was) in **Mursal & another v. Manese [2022] KEHC 282 (KLR)**, where it was held that: "While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding.’’ 1. To disturb the factual findings of the trial Magistrate, the Appellant must demonstrate that the trial court clearly misdirected itself, failed to take into account material circumstances or reached a conclusion that is entirely unsupported by the evidence on the record. As demonstrated below, this Court finds no such failure on the part of the trial Magistrate. 2. The bedrock of the Appellant's entire case rests on proving that the deceased was married to his late father Richard Onduru Bunde under Luo customary law. 3. Unde**r Sections 107, 108 and 109 of the Evidence Act (Cap 80),** the legal burden of proof lies squarely on the party who asserts a fact. The Appellant having asserted a customary marriage, was bound to prove it on a balance of probabilities. In civil claims of this nature, especially where the consequence is as grave as the disinterment of a body, the quality of proof must be robust. As Lord Nicholls observed in **In re H (Minors) [1996] AC 563 at 586**, and as adopted in **Samuel Ndegwa Waithaka v. Agnes Wangui Mathenge & 2 Others [2017] eKLR**: "...the more serious the allegation, the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability." 1. The Appellant relied heavily on Luo customary rites. The law on proof of customary law is well-settled. In **Kimani v. Gikanga [1965] EA 735**, it was held that where African customary law is neither notorious nor documented, it must be proved by the party intending to rely on it. 2. A critical evaluation of the trial record reveals major, fatal inconsistencies in the Appellant's case. The Appellant's witness, Stephen Ochieng Oyaro (PW2) claimed to have participated in the dowry negotiations in 1989. However, during cross-examination, it was established that he was born in 1974. This implies he would have been a mere youth of 15 years old at the time of the alleged negotiations an occurrence highly improbable under Luo customs governing serious marriage delegations. There was no documentary trace of dowry and the key delegation members did not testify. Most tellingly, the deceased’s biological brother Lawrence Otieno Ogonda (DW3), categorically denied that Richard Onduru Bunde had ever paid dowry for his sister nor did he recognize the delegation members alleged by the Appellant. 3. The most compelling piece of evidence was a Statutory Declaration sworn by the deceased herself (at Page 32 of the Record of Appeal) wherein she declared under oath that she was married to Aggrey Opang Onyango and had not contracted any other marriage. Where the deceased’s own voice speaks through a formal uncontroverted sworn document, the court cannot override it with posthumous self-serving claims of third parties. 4. Although the Appellant points to government administrative records or child names to imply marriage, this Court finds in line with **K.O & Another v. J.O [2018] eKLR**, that there is a distinct difference between a sexual relationship or cohabitation that produces children and a formally celebrated customary marriage. Administrative convenience or parentage records do not substitute the strict essential rites required to seal a customary union. Consequently, the trial Magistrate did not err in concluding that the Appellant failed to prove a Luo customary marriage between the deceased and Richard Onduru Bunde. 5. Exhumation is an extraordinary and highly intrusive remedy. The law treats the final resting place of the dead with utmost sanctity. As the Court of Appeal rightly observed in **Nazerali v. Regional Criminal Investigation Office Coast & 4 others [2023] KECA 85 (KLR)**: "Although the Court has the power to give an order for exhumation, it is not an order that ought to be issued lightly... the primary function of the Court is to keep faith with the dead." 1. This Court must look at the doctrine of legal proximity as set out in **Ruth Wanjiru Njoroge v. Njeri Njoroge & Another [2004] eKLR**, which establishes that the person first in line of duty to bury the deceased is the one closest to them in legal terms. 2. The Appellant is not a biological child of the deceased. Under cross-examination, he admitted he had no documentary evidence of marriage, did not care for her in her final illness and only learned of her death years later. Conversely, the 1st Respondent is the biological son of the deceased and the 2nd Respondent is her brother-in-law via her marriage to Aggrey Opang Onyango. The biological children of the deceased have raised no objection to her burial place where she has lain peacefully since 2013. 3. To order exhumation thirteen years after interment on the basis of a disputed, unproven marital claim would be an egregious violation of the dignity of the deceased and the peace of her living family. The trial court's refusal to order exhumation was legally sound, proper and mathematically consistent with the evidence. 4. Having failed to establish the foundational customary marriage, all of the Appellant's consequential claims for declarations and exhumation must fall. 5. Regarding the claim for Kshs. 5,000,000.00/= in general damages, this Court agrees with the Respondents that the claim is entirely unconscionable and lacks any legal basis. Damages in tort or civil litigation are compensatory and must be anchored to a proven legally recognized violation of a right or loss suffered. The Appellant has shown no injury, no close filial or emotional relationship with the deceased during her lifetime and no basis for why he should receive a monetary windfall. Burial disputes are solemn matters of custom and dignity; they must never be permitted to become instruments of commercial extraction or opportunism. 6. In the final analysis, this Court finds that the Appellant has failed to establish any error of law or fact in the Judgment of the trial court. The learned trial Magistrate evaluated the evidence with admirable care, properly applied the burden of proof and correctly identified the lack of customary marriage. 7. Accordingly, the Appeal is hereby dismissed in its entirety with costs to the Respondents. It is so ordered. **Dated and delivered at Siaya, this 17th day of July 2026** **D.KEMEI** **JUDGE** **In the presence of:** **M/A Wetaba…………………….for the Appellant** **Mongare for Makori…………………........for the Respondent** **Maurine…………………………………….Court Assistant**