[2019] KEHC 11319 (KLR)
The court found that the unavailability of the Ngong property as a burial site constituted new and important evidence justifying a review of its previous orders. While the plaintiff and 2nd defendant retained the right to bury the deceased, the court considered the practical difficulties and costs for the 1st...
Source-derived case information.
- Citation
- [2019] KEHC 11319 (KLR)
- Parties
- Plaintiff: Fredrick Harison Okungu; Defendant: Njeri Mwangi; Defendant: Kevin Kinyanjui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2017
- Procedural Posture
- Civil Case / Ruling on Application for Review of Burial Orders
- Outcome
- Application for review allowed; burial to take place at Langata cemetery; previous orders otherwise remain; each party to bear own costs.
- Judges
- AO Muchelule
- Legal Topics
- Burial Disputes, Customary Law Marriage, Rights of Next of Kin
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Harison Okungu
Plaintiff
Njeri Mwangi
Defendant
Kevin Kinyanjui
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Burial Orders
Legal Issues
- 1 Who has the legal right to determine the place of burial for the deceased Naomi Muthoni Mwangi.
- 2 Whether the previous court order regarding burial at Ngong should be reviewed due to new evidence of unavailability of the burial site.
- 3 Whether the burial should take place at Langata cemetery, Kisumu, or Loc.5/Mugumoini/2150.
Ratio Decidendi
The court found that the unavailability of the Ngong property as a burial site constituted new and important evidence justifying a review of its previous orders. While the plaintiff and 2nd defendant retained the right to bury the deceased, the court considered the practical difficulties and costs for the 1st defendant and her family if burial were to occur in Kisumu. Balancing these factors, the court ordered that the deceased's body be released to the plaintiff and 2nd defendant for burial at Langata cemetery, a neutral and accessible location. The other orders from the previous ruling remained in force, and each party was to bear their own costs.
Court Disposition
Application for review allowed; burial to take place at Langata cemetery; previous orders otherwise remain; each party to bear own costs.
Orders
- The orders issued on 21st December 2017 as to burial place are reviewed.
- The body of the deceased Naomi Muthoni Mwangi shall be released to the plaintiff and 2nd defendant by AIC Kijabe Hospital for burial at Langata cemetery.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
CIVIL CASE NO. 9 OF 2017 (OS)
IN THE MATTER OF THE BURIAL DISPUTE OF THE LATE NAOMI MUTHONI MWANGI (DECEASED)
BETWEEN
FREDRICK HARISON OKUNGU..............................PLAINTIFF
VERSUS
NJERI MWANGI................................................. 1ST DEFENDANT
KEVIN KINYANJUI.......................................... 2ND DEFENDANT
RULING
1. The deceased Naomi Muthoni Mwangi died on 8th September 2017 at AIC Kijabe Hospital. The plaintiff Fredrick Harison Okungu filed a suit on 14th September 2017 seeking to be declared the deceased’s husband who was entitled to bury the remains in his rural home in Kajulu, Kadero in Kisumu County. The matter was opposed by the 1st defendant Njeri Mwangi who was the deceased’s mother. Her case is that the plaintiff was not married to the deceased as required under Kikuyu customary law. The deceased left three children, two of whom were fathered by the plaintiff. She had another child Kevin Kinyanjui (the 2nd defendant) who is an adult. Justice Farah Amin directed that the deceased’s body be released to the plaintiff and the 2nd defendant for burial at her property at Ngong.
2. The remains of the deceased have not been buried. This is what led the 1st defendant to bring the present application dated 31st August 2018 seeking to have the orders above varied, reviewed and set aside and in their place there be an order that the body be buried on parcel Loc.5/Mugumoini/2150 which has been offered by her (1st defendant’s) son Daniel Kamande Mwangi. This is where her husband was buried, and where she will be buried when she dies. Her case is that it has become impossible to bury the body at Ngong.
3. The plaintiff and 2nd defendant opposed the application. Instead, they sought to be allowed to bury the body at Langata cemetery where they have booked a burial place. The plaintiff is giving an alternative place, which is his father’s land at Kajulu, Kadero in Kisumu. Both the plaintiff and the 2nd defendant do not say why they have not buried the deceased’s body at Ngong.
4. I note that the court found that it was the plaintiff and the 2nd defendant who had the right to bury the deceased’s body. It would appear clear that Ngong property is not available for burial. The 1st defendant and members of her family were found not to have the right to bury the remains.
5. So that the body can be buried, I allow the application and review the orders issued on 21st December 2017 as to burial place. I do this because the unavailability of Ngong as burial place introduces new and important evidence that was not available at the time of the decision. I also consider that burial in Kisumu would present a far and expensive place for the 1st defendant and all those from her family who would wish to attend the burial. I direct that the body of the deceased Naomi Muthoni Mwangi shall be released to the plaintiff Fredrick Harison Okungu and the 2nd defendant Kevin Kinyanjui by AIC Kijabe Hospital for burial at Langata cemetery. The other orders made on 21st December 2017 shall remain in place.
6. Each party shall pay own costs.
DATED and DELIVERED at NAIROBI this 9TH day of MAY 2019.
A.O. MUCHELULE
JUDGE