[2006] KEHC 184 (KLR)
The court found that the trial magistrate acted correctly in granting the orders sought by the appellant, as she was the first wife residing with the deceased on the matrimonial property and no credible evidence of alternative burial land was presented by the respondent. The urgency of the matter justified the...
Source-derived case information.
- Citation
- [2006] KEHC 184 (KLR)
- Parties
- Appellant: Margaret Mwitungi Muturi; Respondent: Doras Ciaita Muturi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 10 of 2004
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Burial Disputes, Matrimonial Home, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Mwitungi Muturi
Appellant
Doras Ciaita Muturi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Who has the right to determine the burial place of the deceased husband.
- 2 Whether the trial magistrate erred in granting the injunction restraining the respondent from objecting to the burial at the matrimonial home.
- 3 Whether the respondent was accorded a fair opportunity to present evidence of alternative burial land.
Ratio Decidendi
The court found that the trial magistrate acted correctly in granting the orders sought by the appellant, as she was the first wife residing with the deceased on the matrimonial property and no credible evidence of alternative burial land was presented by the respondent. The urgency of the matter justified the interlocutory relief, and the respondent was given adequate opportunity to present her case but failed to do so. The court emphasized that it is against public policy to delay burials due to disputes, and thus the appeal lacked merit and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent in this court only.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 10 of 2004
MARGARET MWITUNGI MUTURI………...…………………..APPELLANT
VERSUS
DORAS CIAITA MUTURI…………….......…………………..RESPONDENT
JUDGMENT
The Plaintiff filed a plaint on 26/2/2004 claiming the right to bury her dead husband on plot No. Mbeere/Mbita/1579 which was her matrimonial home.
The defendant opposed the proposals of the plaintiff and wanted deceased to be buried on another land elsewhere by the defendant and her children. On the same date the plaintiff took out Chamber Summons under certificate of urgency seeking to restrain the Defendant from proceeding with her objections as to the place of burial. In supporting affidavit the plaintiff swore that she was married by deceased in 1940 and their matrimonial home was established in plot No. Mbeere/Mbita/1579 and that the deceased husband was sick for some time before death and she had been taking care of him. That the Respondent is a co-wife obviously a younger wife. At the hearing of the Interlocutory application both applicant and respondent were in court.
The applicant was represented by Counsel while Respondent was in person. She was given time to produce any documents that there was other alternative land for burial but by 2. 30 p.m. she had not produced any evidence. The Trial Magistrate proceeded to make orders sought and therefore opened way for the burial of the deceased according to the wishes of the Applicant/ Plaintiff.
I have perused the grounds of Appeal the deceased has been buried since then. The Trial Magistrate did what was correct. There is evidence that the Applicant was the first wife who was residing with her husband in his land which would be called matrimonial home. She saw no alternative place to bury her husband.
The Trial Magistrate saw the urgency of the matter and rightly acted as necessary. I do not find that the Respondent was not given time to organize her opposition. I also do not say that the Applicant has no cause of action. It is against public policy to keep dead bodies unburied on the grounds that survivors are disputing the burial.
I therefore do not see any merit in this appeal and the same is dismissed with costs to the Respondent in this court only.
Dated on 25th September, 2006.
J. N. KHAMINWA
JUDGE
Read in presence of Mr. Kathungu , Mr. Mogusu
J. N. KHAMINWA
JUDGE