https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9630

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NO. E071 OF 2025** **FRERICK ODUOR NYAMUGA…………………..………… APPELLANT** **VERSUS** **JACKTONE ADIKINYI ADIERI……………………………1ST RESPONDENT** **ROSEMARY OBIERO……………………………………2ND RESPONDENT** **(Being an appeal from the Judgement and Decree of the Chief Magistrate Court, Hon. Edward Tsimonjero in Ukwala CMCC No. E016 of 2025 delivered on 19th September, 2025)** **BETWEEN** **FRERICK ODUOR NYAMUGA …………………………………PLAINTIFF** **VERSUS** **JACKTONE ADIKINYI ADIERI ……………………………..1ST DEFENDANT** **ROSEMARY OBIERO………………………………..…….2ND DEFENDANT** **JUDGMENT** 1. The appeal herein arises from the judgment of Hon. Edward Tsimonjero dated 19th September, 2025 in Ukwala CMCC No. E016 of 2025 wherein he held the Respondents herein has the right to burry their kin in their home and ordered that given the nature of the suit, each party to bear their own costs. 2. The Appellants were aggrieved and duly filed his Memorandum of Appeal dated 19th September 2025 wherein he raised one ground of appeal namely, that the learned Magistrate erred both in law and in fact in dismissing the Appellant’s suit. Reasons whereof the Appellant prays that Judgement and Decree of Chief Magistrate Court Ukwala, delivered on 19th September 2025 be set aside and substituted with judgement of this Court allowing the Appellant’s suit as prayed. 1. This being the first appellate Court, its duty is well spelt out namely, to re-evaluate the evidence tendered before the trial Court and arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See **Selle vs Associated Motor Boat Company Limited (1968(E. A. 123**. 2. The Appellant had lodged suit vide a plaint dated 4th August, 2025 in which he sought for the following reliefs; 3. A temporary injunction restraining the Defendants, whether by themselves, their agents, servants, or otherwise however, from burying the deceased’s body in Bumala Busia County or any other place, pending the hearing and determination of the suit. 4. A permanent injunction restraining the Defendants from interfering in any manner with the remains of the deceased or the burial arrangements made by the Plaintiff 5. A declaration that the Plaintiff, as the lawful husband of the deceased, has the primary right to determine the place and manner of burial 6. An order allowing the Plaintiff to bury his deceased wife (Irene Betty Osamba at their matrimonial home in Ugunja, Siaya County). 7. Costs of the suit and any other relief the Honourable Court may deem just and fit to grant. 8. The trial commenced earnest on 27/8/2025. 9. Angeline Awuor (PW1) in her evidence stated that she is the mother to Fredrik Oduor Nyamuga. That she knows the deceased as the wife to her son since 2016 and who had 2 children with her son. That she knows the parents to Irene and that it was the deceased who took her to her parents. That they have attended family meetings such as attending the burial of her sister. That she is not aware of any marriages involving the deceased since 2016. In cross examination, she stated that they had constructed a house for the deceased. That the deceased’s parents stay in Bumala and that they have not paid any dowry to the deceased’s parents. That she has never visited the deceased parents’ home in Nairobi. 1. Roselyn Anyango Ouma (PW2) testified that she knows the deceased as her brother’s wife (Appellant) for 9 years. That they were blessed with two children together. On cross-examination, she stated that Fredrick is her younger brother. That the deceased spent more time in Maasai Mara where she worked and that she had earlier worked outside Kenya including Turkey. That the deceased came home to be taken care of by her parents as she was sick and suffering from drugs. That she knows Irine as her brother’s wife. 2. Joy Awuor Oduor (PW3), testified that she is the eldest daughter to the Appellant. That her biological mother is called Elizabeth. That the deceased is her step mother. That the deceased has been working outside Nairobi and has been coming on rare occasion. That she was introduced to her in 2016 as her mother when she came to pick her up from school. That her father never used to live with the deceased at her work place. That the parents of Irene lived in Saika estate. That the deceased later went to stay with her parents. 3. Ochieng Nyawire (PW4) a church bishop, stated that he knew the deceased and Fredrick as wife and husband. That he adopted his affidavit. He confirmed that the Appellant was a member of his church since 2009. That he met the deceased after the death of Appellant’s first wife. That there was no marriage in the church and at the Attorney General’s office. That there was no customary marriage. That there was consent from the deceased’s parents. That the Appellant did not pay dowry as the parents of the deceased were required to first return the dowry that had earlier been paid from the deceased’s previous marriage. That she was sure that the dowry has not been returned. That the marriage had not been solemnized yet. 4. Samuel (PW5) stated that he is the brother to the Appellant. That the deceased was wife to the Appellant. That they visited the parents of the deceased where they were introduced but the Appellant did not greet the deceased’s mother. That the deceased used to stay most of the time until 2023 when she came to live with his brother. That he did not know the ownership of the Utawala South property. 5. Mordecai Otieno Onyango (PW6) stated that he had known the deceased to the wife of the Appellant. That both were tenants in Utawala with the Appellant and the deceased. That the two lived together and introduced themselves as couples and were his friends since they were in the same church. That he never witnessed any marriage ceremony between them. 6. Jared Owino (PW7) testified that he is the Appellant elder brother. He stated that he has known the deceased for 9 years and has never accompanied his brother for marriage rites in her parents’ home. That the deceased was his brother’s life partner and wife. That the deceased and Appellant were presumed as a couple. That he does not know the deceased’s parents’ home as he has never visited them. 7. Jane Atieno Agunda (PW8) stated inter alia; that the Appellant herein is her younger brother; that she knows the deceased as his brother’s wife since 2016. In cross examination she stated that she has never witnessed any marriage ceremony between the two. That she has never visited the parents of the deceased. That there was no marriage ceremony organized by the Appellant like the one that her husband did for her. That the parents of the deceased kept on postponing the marriage ceremony and later refused to allow any marriage ceremony. 8. Fredrick Oduor Nyamuga (PW9) adopted his amended plaint dated 7/8/2025, amended statement dated 7/8/2025 and list of documents dated 21/8/2015 as his evidence in chief. He stated inter alia; that the deceased died due to abuse of drugs; that the deceased’s father did not need cows as payment of dowry and that instead he paid kshs 100,000/= to the mother via Cooperative Bank account and kshs 150,000/= to her mother via National bank. That he later paid kshs 70,000/= to Jacktone (deceased’s father) as a gift. He stated that the deceased had been his childhood friend and later became his wife with whom they had two children and that the deceased had another child from a previous marriage and that his other two children from his late wife were also brought on board. That he paid dowry in form of money and confirmed that he had known the parents of the deceased for twenty years as they lived in Nairobi city. That the deceased lived in his house until 2025 and had been using drugs. That he closed all the avenues of getting drugs and that the deceased plotted to go back to her parents home. That the deceased died due to abuse of drugs. He relied on photographs showing him and the deceased at their matrimonial home as well as documents indicating him as the father to the deceased’s children and also the deceased’s next of kin when she was hospitalized. That the deceased’s father did not want dowry to be paid in form of cows but wanted cash and that he paid Kshs 100,000/ via Cooperative bank and Kshs150,000/ via National bank. That he also paid Kshs 70,000/ to the deceased’s mother and a further Kshs 100,000/ to enable her complete some construction she was undertaking. In cross examination, he stated that inter alia; that he is a business man doing real estate business, while the deceased was working at a clinic at Angima; that he was told the deceased was in another marriage and the dowry from the previous marriage had not been refunded as he had a child with her ex-husband; that the deceased gave out his name as the father to the child; that there was no agreement as to where the body was to be taken for preservation and for burial; that he discovered that the deceased hailed from Marachi clan in Busia County; that he does not know the Marachi customary marriage rites; that the deceased’s former marriage had not been dissolved as the dowry had not been refunded by her parents; that the deceased is the one in whose name the allotment letter to the Utawala property has been issued; that he does not have receipts to show purchase of construction materials; that there is nothing to link him to the Utawala property; that he has no documents such as approval/application for electricity connection to the plot; that he is aware that people who are not married can have children and do celebrate birth days and invite friends to such functions; that the deceased had been paying fees for the child at Kabarak but he also made some payments too; that he was not a signatory to the Mariala investments account; that the Mariala was a side business for the deceased who used to supply medicine to Angana foundation; that the deceased transferred Kshs 500,000/ to him and a similar sum to other company; that the deceased’s father did not ask him to send him money; that they did not have an agreement with the deceased’s parents on payment of dowry; that none of his family members have visited the deceased’s parents; that it is not true that he met the deceased for the first time when she came to purchase a plot next to his residence; that he was a witness to the sale transaction made by lawyer Seth Ojienda in which the deceased bought two adjoining plots 141 and 142; that there are two buildings on the two plots and which comprise of apartments up to the 2nd floor; that there are two blocks of apartments one with 18 units and the other with 6 units which were built between 2018-2024 December; that there is nothing in his name in respect of the two plots; that the rents from the apartments used to be paid to the deceased before she died; that he sent out notices to the tenants to channel the rent to his account immediately as from 1/8/2025 as he needed money for school fees for his children Earl Liram and Betty; that the children from his first marriage are well taken care of by himself; that he has some rental premises elsewhere; that the deceased was his wife and that all the responsibilities were on his shoulders; that the kids were staying with the deceased at Utawala; that his interest is not about the property of the deceased; that the deceased did not transfer the property to him; that the plots were allocated to him in 2009; that he was a witness when the deceased bought the two plots from George Oduor and that the deceased paid the full purchase price; that he bought his two plots 143 and 144 in 2012; that it is not true that it is his scheme to steal the property; that it is not true that he had been the deceased’s man friend running errands for her. On re-examination, he stated inter alia; that he came to court to dispute the burial of the deceased by her parents; that he relies on Luo and Luhya customs; that parents will bury their daughter if she is not married; that he met and visited the parents of the deceased twice and that the parents had no objection to them living together; that the deceased’s parents never contributed towards the development of the properties.; that he had two children with the deceased; that he was never a director of Mariala Supplies; that the parents of the deceased did not reject the money he sent to them; that the deceased had informed him that her former husband had declined refund of dowry; that the deceased used to pay school fees for Earl but with his support. The Appellant closed his case at that juncture. 1. Jackstone Adikinyi Adieri (DW1) stated that he is the biological father to the deceased, who was his 2nd born. That the Appellant is not the deceased’s husband since his parents have never come for dowry negotiations. He adopted his affidavit dated 12/8//2025 and 26/8/2025 as his evidence in chief. That he had never asked for money from the Appellant. That Utawala plots belong to the deceased. That the former marriage had not been dissolved. That Remjus Odonyo Yai is the legal husband of the deceased and if he comes and agrees to bury the deceased, then he has no objection. That the Appellant was the neighbour to the deceased. That the money he got from the Appellant was not to act as dowry. That the Appellant was an errand boy to the deceased. That he did not know that the deceased had a problem with drug abuse before she passed on. That according to Marachi customs, the man goes to the home of the girl for introduction in the company of his parents and then he later organizes for the marriage negotiations after there is an agreement. That thereafter dowry is paid and a ceremony is held where the girl is released permanently to her husband. That none of this happened. That the Appellant did visit them but he had told him that the deceased was formally married and that dowry had been received and that he would not bless any other marriage. That he has never asked for money from the Appellant. That he used to do a lot with his daughter and that he had given her money to do developments. That the Appellant used to do errands for the deceased as she was away at the time. That the deceased might have given the Appellant the bank account details in order to refund him the money he had lent the deceased. That the Utawala plot belongs to the deceased who had constructed it and then invited them to come and reside there. That the issue of the photos is that the deceased had invited them to celebrate and had requested her neighbour to use his house for the occasion. In cross examination, he stated inter alia that; that the husband to the deceased paid 5 cattle, 2 coats and kshs 70,000/= which he was to refund if the former husband demanded for it; that the two had separated but the marriage had not been dissolved; that the deceased’s husband was one Remjus Odongo Yai; that if the deceased’s husband refuses to bury the deceased then he will do it; that he has not engaged with the deceased’s husband over the matter but he has agreed to record a statement on his own volition; that he knew the Appellant as the deceased’s neighbour; that he cannot tell the relationship the deceased had before the other two children were born; that the deceased’s dowry had been paid by her husband who gave Kshs 200,000/ as he had no cows; that the Appellant has not paid dowry and that the money sent by the Appellant was not to act as dowry; that he does not know the Appellant’s plots in Mihango but only knows plots 141 and 142 belonging to the deceased; that the buildings on the two plots belong to the deceased; that he attended the birthday of the deceased’s child and he was accompanied by his wife; that the deceased informed her that the ceremony was being held at a neighbour’s house and that he did not enquire about the owner of that house; that the child whose birth day was being celebrated had not been sired by Ramjius; that he did not ask about the identity of the father of the said child; that he cannot recall much about the photographs shown to him as he has been unwell for long. On re-examination, he stated inter alia; that the deceased had been married by Remjius, who paid dowry in accordance with Marachi customs; that the deceased later separated with her husband but that there was no divorce; that Remjius has not yet demanded refund of his dowry; that as father to the deceased, he has no right to declare the marriage dissolved; that he attended the birth day ceremony for the deceased’s three children; that the deceased had been working outside Nairobi; that it was not his duty to find out the persons the deceased was having children with. 1. Gerishon Enos Adieri (DW2) adopted his statement dated 26/8/2025 as his evidence in chief. That the deceased was a daughter of his brother Jacktone. That he knows that Irene was married to a man from Bondo and that he witnesses the marriage ceremony which was conducted as per Luhya customs at the home of Jacktone in Busiala village. That the man brought 5 cows and 2 goats as well as Kshs 70,000/. That he has never been called to any other marriage ceremony involving the deceased. That he is not aware that she has been married to someone else. That he is only aware of the marriage ceremony involving the man from Bondo. On cross-examination, he stated inter alia; that he saw the deceased’s husband once and that he has never gone to Bondo; that the marriage of the deceased and the Bondo man has never been dissolved; that the Luhya and Luo customs are almost the same; that parents can bury their daughter if the husband rejected her; that the deceased’s parents now seek to bury her; that the husband of the deceased has not refused to bury her; that he agrees to Remjius burying his wife and if he refuses then Jacktone and his wife will bury their daughter. On re-examination, he stated that the deceased’s father cannot refuse to allow the deceased’s husband to bury his wife. That customary marriage ends upon refund of dowry. That a father to the deceased woman will only bury her if the husband refuses to do so. 1. Maureen Muzozo Mbada (DW3) stated that she was the house help employed by the deceased and had worked for her for five years. That the deceased used to work in Maasai Mara and could only come home for two weeks and that she was the one taking care of the children. Her testimony was that the Appellant was no more than a neighbour to the deceased, who could visit the deceased at her house while the deceased could also visit him at his house. Her testimony was that the numerous Mpesa transactions from the Appellant to herself were at the instance of the deceased whenever she asked for money for the house’s upkeep. On cross-examination, she stated inter alia; that she knew the Appellant as the deceased’s neighbour; that she did not know the fathers of the three children; that the birth certificate of the last born child indicates the Appellant as the father; that the deceased was at home in 2023 when she fell sick and that from 2024 she was at home and was the one who was giving her the money and at times she could ask someone else to send her the money; that she does not know the fathers of the children as they moved from Mihango to Utawala; that the birth day of the child named Earl was held at the Appellant’s house as he was the neighbour; that she recognizes the photographs showing the deceased, Appellant and the children in different locations. On re-examination, she stated inter alia; that the Appellant and deceased could visit each other occasionally; that she could not tell the personal relationship between them; that the deceased did not tell her the names of the fathers to the children; that she could not tell the persons the deceased could go out with; that the deceased never told her that the Appellant was her husband; that she worked for the deceased for three years from 2021; that the money was being sent to on instructions of the deceased; that the daily house expenses was so much and not as indicated in the m-pesa statement; that they were not spending an average of Kshs 1,500/ per month. 1. Dominic Onyango Adieri (DW4) testified that he is a resident of Busiala village. He adopted his statement dated 26/8/2025 as his evidence in chief. He stated that he is aged 91 years having been born in 1934. That he knows the customary rights relating to marriages. That Marachi and Luo are neighbours as they share the same customs. That according to their custom, the man visits the girl’s parents at their home and that both the girl and the man must have their friends and that an introduction is done when the parents of the man makes the visit and that thereafter the issue of the dowry is arranged. That a valid marriage is determined by dowry including cattle, goats and money. That there can never be a marriage where there is no dowry as well as no visit by the man’s parents. That Jacktone is his brother. That the deceased was married and that he attended the ceremony where dowry was paid in the form of 5 cattle,2 goats and Kshs 70,000/ which were brought by the parents of the man from Bondo. That he has never witnessed any marriage involving the deceased. That he learnt from the deceased’s father that the deceased had separated with her husband. That according to their customs, the deceased ought to be buried at her husband’s home in Bondo since their marriage is still valid and that the deceased’s parents can only bury her if her husband declines to bury her. That where dowry has been paid, it is very difficult for the parents to bury her and that they must sit down and agree first. On cross-examination, he stated inter alia; that he has not been unformed that the deceased’s husband has declined to bury her; that the deceased’s parents can only bury her if the husband declines to bury her. That she must be buried in Bondo. That Jacktone had two daughters who have since died. That he does not know much about Irene’s sister’s marriage. 1. Remjius Odongo Miyai (DW5), the man from Bondo testified that Irene Betty Osamba was and still is his wife, though they had separated. That he adopted the contents of his affidavits dated 12/8/2025 and 26/8/2025 as his evidence in chief. That he paid dowry in the form of 5 cows, two goats and kshs 70,000/. He was categorical that despite their separation, they had no intention of ending the marriage. That for the 9 years of their separation, they had maintained close contact, and even on the night of 27th July 2025 when the deceased passed on, they had a conversation up to past 11.00pm. That, as far as he is concerned, the deceased was still his wife and that he is not aware of any other marriage. That the deceased did not inform him of any other marriage during their separation; That he has never gone for refund of his dowry. That his intention is to bury his wife in Sakwa in Bondo. That he did not file suit as he was waiting for the court to determine the dispute. That there is no dispute between himself and the deceased’s parents on who should bury the deceased. On cross examination, he stated inter alia; that he filed the affidavits to show that he was in existence as the deceased’s husband; that if the deceased’s parents bury the remains of the deceased, he can still sue them as there is still time for him to claim after the marriage; that the deceased was coming in as the second wife as he was then courting somebody else; that he had been trying to mend fences with the deceased so that they could come back together; that the deceased mentioned that she had since got two children but did not inform him of the father of the children; that he had been supporting his son Earl but did not have the m-pesa evidence; that he wants to confirm that he exists as the husband of the deceased. On re-examination, he stated inter alia; that he was the one to bury the deceased according to custom; that the deceased informed him that she had 2 children during the separation but that did not end their marriage; that there was no intention of them ending the marriage; that taking another woman does not end the previous marriage. 1. Rosemary Atieno Obiero (DW6) was the mother to the deceased. She adopted her affidavit dated 12/8/2025 as her evidence in chief. That she knew the Appellant as the person who used to be sent by the deceased to run her errands and that the Appellant was also a neighbour to the deceased. That the Appellant used to come and collect medical supplies for dispatch on behalf of the deceased who ran a business of selling medicines. That she knew the Appellant when she was supervising the construction of the perimeter wall on the deceased’s plot while the next plot belonged to the Appellant. That the deceased later came from Liberia and worked with Angema Company and then completed the apartments. That the deceased did not inform her the father of the two children as she only knew the firstborn as the son of Remjius. That the Appellant had never talked to her about marrying the deceased. That the deceased did not tell her that she was married to the Appellant or they had children. That she recalled attending a birthday party for the deceased’s children, That she also recalled receiving Kshs 100,000/ in her Cooperative bank account and that the deceased sent her to go and collect Kshs 300,000/ and then give it to the Appellant to take it to her. That she had earlier lent the deceased monies and thus she was to refund her once she sold the medicine. That she never gave the Appellant her account number. That they never agreed that dowry was to be paid through M-pesa. That the deceased was a pediatric doctor at Angama foundation in Maasai Mara. That there has never been any customary rights to formalize the marriage. That she has the custody of the plots belonging to the deceased. That Remjius Odongo Miyai is the husband of the deceased as he paid dowry and a celebration conducted. That the Appellant was a person running errands for the deceased. That the person to bury the deceased is Remjius and if he requests them to do so then they have no objection to the same. On cross-examination, she stated inter alia; that the Appellant was a friend of the deceased; that the deceased informed her that she was being threatened and went to live with her; that she stayed with her together with the children until she died; that the Appellant used to come to her house at Saika to collect consignments; that the deceased separated with he husband Remjius in 2015 and had not gone back to her husband until her death; that she did not attend any meeting where the Appellant proposed to marry the Appellant. On re-examination, she stated inter alia; that she dealt with the Appellant as a neighbour who ran errands for the deceased; that she was not aware if the deceased lived with the Appellant; that she had not agreed with the Appellant that he pays dowry through M-pesa; that the deceased told her that she was frightened of the boyfriend after she learnt that the man was married to another woman who had died; that a boyfriend is not the same as a husband. 1. The appeal was canvassed by way of written submissions. 2. The Appellant’s submissions revolved around the one ground of appeal namely that the trial court erred in dismissing the Appellant’s suit. Reliance was placed on the Marriage Act and Case law. It was submitted that the Appellant was the lawful husband of the deceased as he had cohabited with the deceased openly as husband and wife for the period of 9 years and therefore enjoyed primary right to determine her burial arrangements. That long cohabitation of a man and a woman with a general reputation of husband and wife raised a presumption that the parties have contracted marriage. That the Supreme Court in the Case of **MNK v POM [2023] eKLR** stipulated the principles to be present for a presumption of marriage to exist to include; i) The parties must have lived together for a long period of time. ii) The parties must have the legal right or capacity to marry. iii) The parties must have intended to marry. iv) There must be consent by both parties. v) The parties must have held themselves outside world as being a married couple. vi) The onus of proving the presumption was on the party who alleged it. vii) The evidence to rebut the presumption had to be strong, distinct, satisfactory and conclusive. viii) The standard of proof was on a balance of probabilities. The Appellant maintained that his relationship with the deceased satisfied the principles stipulated by the Supreme Court in the case of **MNK v POM eKLR (2013)** for a presumption of marriage by cohabitation to be upheld. That he lived with the deceased from the year 2016 until her demise in 2025. That the long cohabitation had crystallized into a marriage and that it is safe to presume the existence of a marriage between the appellant and the deceased. That both the appellant and the deceased had capacity to marry. That the alleged customary marriage between the deceased and Remjius Odongo Miyai was a voidable marriage as no valid marriage existed between the deceased and Remjius Odongo Miyai. 1. Section 96 of the Marriage Act required that all unregistered customary, Hindu or Islamic marriages that were in existence at the time of entry into force of the Marriage Act be registered within three years of the coming into force of the Act. It was contended that the alleged customary marriage between Remjius Odongo Miyai and the deceased (Irene Betty Osamba) was not registered as per the requirements of section 96 of the Marriage Act 2014, thus no valid marriage existed between the two. That the 1st respondent averred that the marriage between the deceased and Remjius Odongo Miyai still exists as the parties never underwent any customary divorce proceedings including return of dowry. However, it's the 1st respondent who kept postponing the return of dowry to Remjius Odongo Miyai for reasons best known to him despite several follow ups the appellant made. The appellant placed reliance on the case of **TSA v SO KEHC 12 (KLR) [1979],** where the High Court held that, under Luo custom, marriage may be dissolved without technical insistence on dowry return where breakdown is irretrievable and parties have been apart for a prolonged period. The court held that the parties having lived apart for 2 years, there was no hope of reconciliation. It was contended that the alleged customary marriage between Remjius Odongo Miyai and the deceased had irretrievably broken down as the parties separated in the year 2015 and none of them made any efforts of reconciliation for 10 years. That Remjius Odongo Miyai even after the death of Irene Betty Osamba has made no demand for the burial of the deceased’s body and thus the impression left is that the alleged customary marriage had been dissolved when the parties separated. That the deceased and Remjius Odongo Miyai not only separated but there existed no valid marriage between them as the same had not been registered and therefore, the deceased had capacity to get married to the appellant. That the appellant and the deceased intended to marry and that the deceased took the appellant to their home in the year 2016 where the appellant asked from the 1st respondent the deceased’s hand in marriage. That the 1st respondent accepted the request and instructed him that he preferred dowry of the deceased in form of cash as there was no person who would be able to take care of the cattle. That the appellant made the dowry payments in form of cash transactions as was requested by the 1st respondent and that the payments made to the 1st and 2nd respondent have been exhibited vide documents produced as exhibits. 24. It was submitted that the appellant and the deceased held themselves to the outside world as being married. That the appellant on several occasions introduced the deceased to his mother, brothers and sister as his wife. Additionally, the deceased tenants and church mates knew that she was married to the appellant. That the 1st and 2nd respondents made visits to the appellant and deceased’s matrimonial home on several occasions including the deceased’s birthday celebration. That the appellant and the deceased not only held themselves to the outside world as husband and wife but also to the 1st and 2nd respondents. That the cohabitation between the appellant and the deceased met the principles set out by the Supreme Court in the case of **MNK-v-POM (2023) eKLR** (supra)for a marriage to be presumed. It was thus contended that the cohabitation between the appellant and the deceased met all the principles laid down by the Supreme Court in the above case. 25. It was contended that the alleged customary marriage between the deceased and Remjius Odongo Miyai was a voidable marriage, and as such the deceased had capacity to marry the appellant. Reliance was placed in section 96 of the Marriage Act which requires that all unregistered customary, Hindu or Islamic marriages that were in existence at the time of entry into force of the Marriage Act be registered within three years of the coming into force of the Act. That in the present case, the marriage between the deceased and Remjus Odongo was not registered as required by law. That the Attorney General issued a legal notice in 2017 extending the registration period indefinitely, but the marriage was never registered, rendering it voidable. Reliance was placed in the case of **EMM v PMK [2024] eKLR** where the petitioner sought dissolution of a customary marriage contracted in June 1987. Even though both petitioner and respondent admitted to having been in a customary marriage for 31 years, the court took it upon itself to deal with the preliminary legal question of whether indeed there was a marriage to dissolve, in accordance with the Marriage Act. Having established that the customary marriage was not registered, the court concluded that the combined legal effect of sections 3, 12(e), 59, and 96 of the Marriage Act, all of which deal with mandatory registration, meant that no valid marriage existed. That all existing customary marriages that had not been registered by 1st August 2020 had been rendered voidable, and therefore could only be annulled, not dissolved. Further, in the case of **JTO v AP [2022] eKLR,** the petitioner sought a divorce decree from the High Court to dissolve an unregistered customary marriage. The court considered the question whether a valid customary marriage existed, and whether a party could file for divorce in respect of an un-registered customary marriage. The court refused to dissolve the unregistered customary marriage, noting that for such a marriage to exist, it must first be registered. 26. It was contended that since the marriage between Remjus Odongo and the deceased was not registered, it cannot be considered a valid marriage, thus the deceased had the capacity to marry the appellant. That Remjus Odongo and the deceased had been separated for over 10 years without any attempts at reconciliation and had no intention whatsoever of getting back together. That DW1 admitted during cross examination that at the time of the deceased’s death, he could not call Remjus Odongo because the deceased separated with Remjus Odongo in 2015. He further admitted that the deceased never went back to Remjus Odongo after they separated. That additionally, DW5 (Remjus Odongo) admitted during cross examination that at the time of the deceased’s death he was already in another relationship. 27. The Appellant took issue with the trial court’s decision that the dowry had not been returned to Remjus Odongo for the parties to have been considered divorced. It was the view of the Appellant that the courts have since held that customary law is only applicable to the extent that it is not repugnant to justice and morality. That a customary marriage can be dissolved even without dowry return, especially where there has been a long separation with no efforts at reconciliation. That the requirement to return bride price is not an absolute bar to dissolution or recognition of subsequent unions. Reliance was placed on the case of **TSA v SO KEHC 12 [1979] (KLR),** where the High Court held that, under Luo custom, marriage may be dissolved without technical insistence on dowry return where breakdown is irretrievable and parties have been apart for a prolonged period. The court held that the parties having lived apart for 2 years, there was no hope of reconciliation. 28. That based on the foregoing case, it was contended that the alleged customary marriage between Remjus Odongo Miyai and the deceased had irretrievably broken down and that the parties separated in the year 2015 and that none of them made any efforts at reconciliation for 10 years. That Remjus Odongo Miyai even after the death of Irene Betty Osamba has made no demand for the burial of the deceased’s body. DW1 confirmed during cross examination that he was not sure if Remjus would bury the deceased. Indeed, the said Remjius Odongo Miyai (DW5) stated that he had since moved on and entered into another relationship. It was thus contended that the impression left is that the alleged customary marriage despite being voidable had been dissolved when the parties separated with no attempts at reconciliation. 29. It was also contended that marriage is a voluntary union and that the deceased ought not to be bound to a marriage for the failure of the 1st respondent to return the dowry for reasons known to him. That DW1 and PW9 confirmed during cross examination that DW1 was to refund Remjus 5 Cattle, 2 goats and Ksh 70,000 which he never did. That the deceased’s separation from Remjus for a period of 10 years without making any efforts at reconciliation clearly show the marriage had irretrievably broken down and it was upon the respondents to return the dowry which they failed to do. It was thus maintained that both the deceased and the appellant had capacity to contract a marriage. 30. It was contended that the appellant and deceased held themselves out to the world as being a married couple and that the learned magistrate had erred in law and in fact in holding the contrary. It was further stressed that the appellant and the deceased not only held themselves to the appellant’s family as married but also to the outside world including the respondents in many ways. That the appellant on several occasions introduced the deceased to his mother, brothers and sister as his wife. At trial, PW1, PW5 and PW8 confirmed that the appellant introduced the deceased to them as his wife. Additionally, PW6, a tenant of the deceased confirmed that the deceased lived together with the appellant in their house in Utawala Mihango and was known to him as a married couple. That PW4 confirmed that the deceased and the appellant were known to them as husband and wife. That the appellant adduced as exhibit, a photo of the deceased and the appellant at the deceased’s cousin. The appellant further adduced a copy of a hospital letter where the deceased had been admitted for some time, contents which indicate the appellant as the deceased’s husband. The appellant further presented M-Pesa statements showing dowry payments made to the 1st and 2nd respondents, contradicting their claim that they did not know him. These payments included significant amounts made over the years for the deceased’s hand in marriage. PW8 confirmed during cross examination that the deceased’s parents kept postponing the marriage ceremony despite the same having been planned. Additionally, the appellant took the 1st respondent to hospital as his father in law when the 1st respondent fell sick. The appellant attached photos of the 1st respondent when he took him to hospital. The appellant further adduced as evidence payments made on behalf of the 1st respondent at Guru Nanak Ramgaria Sikh Hospital when the 1st respondent was sick. Further, that the 1st and 2nd respondents made visits to the appellant and deceased’s matrimonial home on several family occasions including the deceased’s birthday celebration. The appellant adduced in evidence photographs of the 1st and 2nd respondent at the appellant’s matrimonial home. That the appellant and the deceased not only held themselves to the outside world as husband and wife but also to the 1st and 2nd respondents and further that the deceased was known as the mother of the appellant’s son. 31. The Appellant took issue with decision of the learned magistrate in holding that the appellant did not complete the customary rites. It was contended that for a marriage to be presumed, it is not mandatory that the parties complete the customary rites. It suffices that the parties intended to marry. That whereas it is true that the customary rites had not been performed, it was at the 1st respondents request that the parties do not pay dowry as per the Luo customs and that cash payment was good enough for him. That the appellant intended to marry the deceased as he made the dowry payments to the respondents as per the exhibits produced. That it was thus erroneous for the trial court to rule that the 1st and 2nd respondents had the singular right to bury the deceased. It was further contended that if the marriage with the deceased and Remjius Miyai still existed, then the Respondents could not be allowed to bury the deceased as it was supposed to be Remjius to do it as per the Luo customs. That the fact that even in death, Remjus Odongo did not claim the deceased body clearly showed that he wanted nothing to do with her as he was no longer married to her as he had already moved on and entered into another relationship. 32.It was finally contended that there was a presumption of a marriage between the deceased and the appellant having met the principles stated by the Supreme Court in **MNK-v-POM (2023) eKLR.** And that the appellant was the lawful husband of the deceased and hence had the right to bury the deceased as per the Luo customs and traditions. 33. The Appellant was compelled to file supplementary submissions after Respondents in their submissions dated 10th February 2026 argued that the appellant had deviated from his pleadings by submitting on the doctrine of presumption of marriage while the plaint pleaded a customary marriage. That in the plaint, the plaintiff clearly pleaded as follows: **"The Plaintiff avers that he had a customary marriage with the deceased together with their three children for the last nine years."** It was thus submitted that this pleading placed before the court the existence of a marital relationship between the appellant and the deceased, their cohabitation and the existence of their three issues over a period of nine years. That these facts form the factual foundation upon which the court may determine the existence of a marriage. It was therefore submitted that reliance on the doctrine of presumption of marriage does not amount to introducing a new issue or deviating from the pleadings. Rather, it is a legal inference drawn from the facts already pleaded and proved, particularly prolonged cohabitation and the existence of a family unit. In the case of **Hortensiah Wanjiku Yawe v Public Trustee [1976] eKLR** the appellant pleaded the existence of a customary marriage with the deceased. The Court of Appeal found that the customary rites had not been completed for a customary marriage to exist. However, the court went ahead and presumed the existence of a marriage despite the doctrine of presumption of marriage having not been pleaded by the appellant. It was thus submitted that the doctrine therefore operates as a legal mechanism through which courts infer the existence of a marriage from proven facts, especially where strict proof of formal rites may be contested as was the case in **Hortensiah Wanjiku Yawe v Public Trustee** (supra). 34. Additionally, it was contended that the Respondent cannot validly argue that the issue was not pleaded when the trial court itself addressed and determined the issue of presumption of marriage. This demonstrates that the issue arose from the evidence on record and was properly before the court for determination. It was also contended that the court may determine an issue which has been left to it for decision and on which evidence has been led, even where the issue was not expressly pleaded, particularly where no objection was raised. That the evidence regarding the appellant's relationship with the deceased, their cohabitation for nine years and the existence of their three children was placed before the trial court without objection and that the trial court subsequently considered and determined whether a presumption of marriage arose from those facts. 35. It is the Appellant’s final contention that he was the deceased’s husband and thus entitled to pay his last respect to his deceased wife by burying her. He thus urged the court to find that the appellant's appeal has merit and that the same be allowed and that the Judgment and decree of Senior Resident Magistrate’s Court Ukwala, delivered on 19th September 2025 be set aside and substituted with Judgment of this Court allowing the appellant’s suit as prayed thereon and that this court do issue an order of exhumation of the deceased’s body wherever she is buried by the respondents for re-burial by the Appellant plus costs. 36. The Respondents in their submissions gave a summary of the history of the matter as it transpired in the trial court. It was submitted that a party cannot amend their case by submissions as the same cannot be countenanced as it is a mischievous illegality. See **Ogando Watu Credit Limited & another (Civil Suit E098 of 2022) KEHC 3074 (KLR)** 37. It was submitted that the Appellant having miserably failed to prove marriage by African Custom as analyzed by the Hon. Trial Magistrate, the Appeal is academic and that this Court cannot grant what was not proven and shift a new cause not pleaded. That in answer to the Plaintiff's submissions, even just for academic purposes, it was submitted that even the case for a presumption of marriage was not proven. 38. It was submitted that this Appeal is presented on the basic fact that the trial Court erred in failing to find that even if customary rights had not been performed, there was a marriage by presumption. That this is a false narrative as there was no pleading laying down a case of marriage by presumption. That the Appellant's case was one of marriage by African customary practice & rites. That in these pleadings the Appellant now confesses that there was no customary rites performed. 39. It was submitted that the question of payments by M-pesa made was disputed and answered not to have been any dowry but the Appellant being sent on financial and purchase errands for the deceased and was not to act as dowry. That the deceased’s parents clearly demonstrated that their daughter remained in marriage but separated with one, Remjius and that they never at any one time witnessed their daughter get into any marriage with the Appellant. That the evidence was galore that literally, the deceased stayed in her house neighboring the Appellant's. That even assuming friendship arose, no ingredients for a presumption of marriage were pleaded and proved. That it is not for the Court to formulate a case for the parties and enter Judgement thereon. That it is now settled law that an Appellate Court should not interfere with the trial Court's Judgement and findings for reasons inter alia; that the appellate Court never saw and evaluated the witnesses; that the Appellate Court is not meant even if opinions may differ to replace their opinions with the trial Court's opinions 39. It was submitted that even as a first appeal, the Appellate Court can only interfere if the lower Court's findings if they are so wrong and contrary to the evidence tendered as to lead to an open miscarriage of justice or that the Judgment is openly contrary to the law. See **Selle and Another vs Associated Motor Boat Company Ltd & Others 1EA 123** and **Gitobu Imanyara & 2 Others vs Attorney General eKLR** as cited in **Nyoike v Mwatemu (Civil Appeal 78 of 2023) KEHC 10414 (KLR)**; See also **Peters vs Sunday Post Limited EA 424** 40. It was contended that the trial Court in this case remained and stuck with the fidelity to the law and to the evidence tendered. That the position of the law is that for a customary marriage to be proven, the custom must be identified and the rites confirmed to have taken place. If none is proven no marriage can be presumed. That the deceased had died while staying with her parents complete with all her children. If that was so, then the question is, how can even a happy, long uninterrupted cohabitation be presumed? Can a marriage be forced upon the deceased if none existed in the first place? That there is absolutely no reason for this Court to interfere with the lower Court judgment. 41. As regards the request for exhumation, it was contended that the appellant is bilaterally under a mistaken belief that a person must be buried on the husband's parcel of land. That is false, even a legally married wife can be buried in a cemetery or to be cremated. That does not invalidate a marriage. That the appellant is imagining that a declaration to be husband must necessarily proceed with exhumation which is legally false. That a marriage can exists even if the burial does not take place in the husband's land. That these scenarios are now too replete. That the deceased pursuant to the Court’s judgment was buried by her parents on 22nd of September, 2025 and that it is now 6 months after burial and that the deceased's body does not exist anymore, what will we be exhumed if such an order was to be given?, bones? Would that be an exercise to be countenanced by the good spirit of the law? Would that not have become repugnant to good sense and order? Is the Court willing to walk that route? 42. It was submitted that, as put in evidence; this case is all about the appellant fighting for access to the deceased’s assets. That as shown during the cross-examination of the appellant, even in life he had attempted to forge documents to defraud the deceased of her property. Is this the person the Court would be willing to exercise its discretion in his favor? That if the Appellant remains so keen on the deceased’s property, he can attempt to ventilate claims in succession cause as he is already doing. That for now and in this case, the spirit of the deceased Irene Betty Osamba must be left to rest in peace where she is withered. 43. It was finally submitted that the Appeal should be dismissed with costs to the Appellant. That the appellants escaped without any order for costs in the lower Court in spite of bringing an unproven vexatious case. That he must now be ordered to pay costs. 44. I have given due consideration to the record of appeal and the submissions tendered. It is not in dispute that the deceased had been married to one Remjius Odongo Miyai who duly paid dowry before they separated sometimes in 2015 having been blessed with one child. It is also not in dispute that the deceased and the Appellant had entered into a romantic relationship as from 2016 and that they were blessed with two children. It is also not in dispute that the Appellant did not organize for a traditional ceremony over the issue of his marriage to the deceased prior to her death but that there were interactions between Appellant and the deceased’s parents where the Appellant paid money to them though the said deceased’s parents have disputed the same and maintain that it was money channeled through the Appellant from the deceased herself. It is also not in dispute that the parents of the deceased had not refunded the dowry to the said Remjius Odongo Miyai by the time the deceased died. It is also not in dispute that the remains of the deceased have since been interred by the Respondents. I find the issue for determination is whether the appeal has merit. 45. The Appellant’s gravamen is that he had married the deceased in 2016 after a steady romantic relationship wherein they lived as a couple first in Mihango and then Utawala estate and that they were blessed with two children. It was further his case that many of their friends had known them to be a couple and that even the deceased’s parents knew them as such. It is noted that the deceased’s parents during the trial turned the tables against him and denied any knowledge of the Appellant and deceased living as a couple. It was further the Appellant’s case that he had cohabited with the deceased openly as husband and wife for the period of 9 years and therefore enjoyed primary right to determine her burial arrangements. That long cohabitation of a man and a woman with a general reputation of husband and wife raised a presumption that the parties have contracted marriage. The Appellant placed reliance in the Supreme Court in the Case of **MNK v POM [2023] eKLR** which stipulated the principles to be present for a presumption of marriage to exist to include; i) The parties must have lived together for a long period of time. ii) The parties must have the legal right or capacity to marry. iii) The parties must have intended to marry. iv) There must be consent by both parties. v) The parties must have held themselves outside to the world as being a married couple. vi) The onus of proving the presumption was on the party who alleged it. vii) The evidence to rebut the presumption had to be strong, distinct, satisfactory and conclusive. viii) The standard of proof was on a balance of probabilities. The Appellant maintained that his relationship with the deceased satisfied the principles stipulated by the Supreme Court in the case of **MNK v POM eKLR (2023)** for a presumption of marriage by cohabitation to be upheld. That he lived with the deceased from the year 2016 until her demise in 2025. That the long cohabitation had crystallized into a marriage and that it is safe to presume the existence of a marriage between the appellant and the deceased. That both the appellant and the deceased had capacity to marry. Even though the Appellant claimed that the customary marriage between the deceased and Remjius Odongo Miyai was a voidable marriage as no valid marriage existed between the deceased and Remjius Odongo Miyai for want of registration in line with section 96 of the Marriage Act 2014, it is noted that the Attorney General later in 2017 had the period of registration of the customary marriages extended indefinitely. That being the position, the marriage between the deceased and Remjius Odongo Miyai still remained valid until the same was dissolved through the requisite procedure or the dowry refunded by the parents of the deceased. 46. The Appellant averred that the 1st respondent had claimed that the marriage between the deceased and Remjius Odongo Miyai still exists as the parties never underwent any customary divorce proceedings including return of dowry. However, the Appellant maintained that it's the 1st respondent who kept postponing the return of dowry to Remjius Odongo Miyai for reasons best known to him despite several follow ups the appellant made. The appellant placed reliance on the case of **TSA v SO KEHC 12 (KLR) [1979],** where the High Court held that, under Luo custom, marriage may be dissolved without technical insistence on dowry return where breakdown is irretrievable and parties have been apart for a prolonged period. The court held that the parties having lived apart for 2 years, there was no hope of reconciliation. It was contended that the alleged customary marriage between Remjius Odongo Miyai and the deceased had irretrievably broken down as the parties separated in the year 2015 and none of them made any efforts of reconciliation for 10 years. That Remjius Odongo Miyai even after the death of Irene Betty Osamba has made no demand for the burial of the deceased’s body and thus the impression left is that the alleged customary marriage had been dissolved when the parties separated. That the appellant and the deceased intended to marry and that the deceased took the appellant to their home in the year 2016 where the appellant asked from the 1st respondent the deceased’s hand in marriage. The Appellant maintained that the 1st respondent accepted the request and instructed him that he preferred dowry of the deceased in form of cash as there was no person who would be able to take care of the cattle and thus he made the dowry payments in form of cash transactions as was requested by the 1st respondent and that the payments made to the 1st and 2nd respondent have been exhibited vide documents produced as exhibits. Even though the Respondents vehemently denied that the money sent to them via M-pesa by the Appellant was just money sent from the deceased through the Appellant, I found the same to be preposterous and unbelievable in view of the mounting evidence showing that the Appellant was close with them as could be seen by the photographs showing the Appellant taking care of the 1st Respondent while in hospital and more photographs showing the Respondents and the Appellant as well as the deceased and the children at the home of the deceased and Appellant. 47. The Appellant and the deceased held themselves to the outside world as being married. The evidence showed that the appellant on several occasions introduced the deceased to his mother, brothers and sister as his wife. Additionally, the deceased’s tenants and church mates knew that she was married to the appellant. There is evidence that the 1st and 2nd respondents made visits to the appellant and deceased’s matrimonial home on several occasions including the deceased’s birthday celebration. Henece, the appellant and the deceased not only held themselves to the outside world as husband and wife but also to the 1st and 2nd respondents. I find that the cohabitation between the appellant and the deceased met the principles set out by the Supreme Court in the case of **MNK-v-POM (2023) eKLR** (supra)for a marriage to be presumed. This is despite the fact that the Respondents had not refunded the dowry to Remjius Odongo Miyai. The said Remjius Odongo Miyai testified in the trial court as DW5 and confirmed that he had since moved on after separating with the deceased and had already got hitched to another woman. Likewise, the deceased had also moved on and settled with the Appellant. I find that it would be unfair to saddle the deceased with the skeleton of a marriage after separating with Remjius Odongo Miyai and be left to hang high and dry while her former husband moves on to marry another woman. The paradox of the situation is that the deceased’s former husband is allowed to go ahead and remarry while the deceased is denied a chance to continue with her life until the former husband comes back to collect his dowry or the deceased’s parents return them to him. I find that such a situation is unfair and unconscionable. I find that even though no ceremony was conducted, the truth is that the Respondents received monies from the Appellant and that they deemed him as a husband to their daughter. The action of the Respondents in turning around and disowning him is rather baffling. I find that the reason behind this is due to the clamour over the properties left behind by the deceased. This was not necessary because the parties would address the same at another forum during the confirmation of grant and distribution of the deceased’s estate. 48. The Appellant took issue with the trial court’s decision that the dowry had not been returned to Remjus Odongo for the parties to have been considered divorced. It was the view of the Appellant that the courts have since held that customary law is only applicable to the extent that it is not repugnant to justice and morality. That a customary marriage can be dissolved even without dowry return, especially where there has been a long separation with no efforts at reconciliation. That the requirement to return bride price is not an absolute bar to dissolution or recognition of subsequent unions. Reliance was placed on the case of **TSA v SO KEHC 12 [1979] (KLR),** where the High Court held that, under Luo custom, marriage may be dissolved without technical insistence on dowry return where breakdown is irretrievable and parties have been apart for a prolonged period. The court held that the parties having lived apart for 2 years, there was no hope of reconciliation. That based on the foregoing case, it was contended that the alleged customary marriage between Remjus Odongo Miyai and the deceased had irretrievably broken down and that the parties separated in the year 2015 and that none of them made any efforts at reconciliation for 10 years. That Remjus Odongo Miyai even after the death of Irene Betty Osamba has made no demand for the burial of the deceased’s body. DW1 confirmed during cross examination that he was not sure if Remjus would bury the deceased. Indeed, the said Remjius Odongo Miyai (DW5) stated that he had since moved on and entered into another relationship. It was thus contended that the impression left is that the alleged customary marriage despite being voidable had been dissolved when the parties separated with no attempts at reconciliation. 49. The Appellant also contended that marriage is a voluntary union and that the deceased ought not to be bound to a marriage for the failure of the 1st respondent to return the dowry for reasons known to him. That DW1 and PW9 confirmed during cross examination that DW1 was to refund Remjus 5 Cattle, 2 goats and Ksh 70,000 which he never did. That the deceased’s separation from Remjus for a period of 10 years without making any efforts at reconciliation clearly show the marriage had irretrievably broken down and it was upon the respondents to return the dowry which they failed to do. It was thus maintained that both the deceased and the appellant had capacity to contract a marriage. It is instructive that the deceased cohabited with the Appellant for long and only left for her parents’ home to recuperate as she had gotten so ill due to some drug related problem. I find that it was unfair to force the deceased to hold onto an empty shell of a marriage and deny her a right to move on. The society is expected not to view the female members of the society harshly but to help them thrive in their lives. 50. The evidence tendered showed that the appellant and deceased held themselves out to the world as being a married couple and hence, the learned magistrate had erred in law and in fact in holding the contrary. It came out clearly that the appellant and the deceased not only held themselves to the appellant’s family as married but also to the outside world including the respondents in many ways. That the appellant on several occasions introduced the deceased to his mother, brothers and sister as his wife. During the trial, PW1, PW5 and PW8 confirmed that the appellant introduced the deceased to them as his wife. Additionally, PW6, a tenant of the deceased confirmed that the deceased lived together with the appellant in their house in Utawala Mihango and was known to him as a married couple. PW4 also confirmed that the deceased and the appellant were known to them as husband and wife. The appellant adduced as exhibit, a photo of the deceased and the appellant at a function involving a cousin of the deceased. The appellant further adduced a copy of a hospital letter where the deceased had been admitted for some time, contents which indicate the appellant as the deceased’s husband. The appellant further presented M-Pesa statements showing dowry payments made to the 1st and 2nd respondents, contradicting their claim that they did not know him. These payments included significant amounts made over the years for the deceased’s hand in marriage. PW8 confirmed during cross examination that the deceased’s parents kept postponing the marriage ceremony despite the same having been planned. Additionally, the appellant took the 1st respondent to hospital as his father in law when the 1st respondent fell sick. The appellant also attached photos of the 1st respondent when he took him to hospital. The appellant further adduced as evidence payments made on behalf of the 1st respondent at Guru Nanak Ramgaria Sikh Hospital when the 1st respondent was sick. Further, that the 1st and 2nd respondents made visits to the appellant and deceased’s matrimonial home on several family occasions including the deceased’s birthday celebration. The appellant adduced in evidence photographs of the 1st and 2nd respondent at the appellant’s matrimonial home. That the appellant and the deceased not only held themselves to the outside world as husband and wife but also to the 1st and 2nd respondents and further that the deceased was known as the mother of the appellant’s children. 51. It is noted that the Appellant took issue with the decision of the learned magistrate in holding that the appellant did not complete the customary rites. It was contended that for a marriage to be presumed, it is not mandatory that the parties complete the customary rites. I find that suffices that the parties intended to marry. That whereas it is true that the customary rites had not been performed, it was at the 1st respondents request that the parties do not pay dowry as per the Luo customs and that cash payment was good enough for him. That the appellant intended to marry the deceased as he made the dowry payments to the respondents as per the exhibits produced. That it was thus erroneous for the trial court to rule that the 1st and 2nd respondents had the singular right to bury the deceased. It was further contended that if the marriage with the deceased and Remjius Miyai still existed, then the Respondents could not be allowed to bury the deceased as it was supposed to be Remjius to do it as per the Luo customs. That the fact that even in death, Remjus Odongo did not claim the deceased body clearly showed that he wanted nothing to do with her as he was no longer married to her as he had already moved on and entered into another relationship. The conduct of the deceased’s former husband was rather ambivalent in that whereas he claimed that the deceased was still his wife due to the non-refund of dowry and that he was the one to bury the remains, he did not take any initiative in that regard and thus it was quite unfair to have tied the deceased to the empty shell of a marriage yet the former husband had moved on with his life and remarried. I find that the deceased was entitled to enter into the union with the Appellant. 52. It was finally contended by the Appellant that there was a presumption of a marriage between the deceased and the appellant having met the principles stated by the Supreme Court in **MNK-v-POM (2023) eKLR.** And that the appellant was the lawful husband of the deceased and hence had the right to bury the deceased as per the Luo customs and traditions. It is not in doubt that prolonged cohabitation and the existence of a family unit supports a presumption of marriage. In the case of **Hortensiah Wanjiku Yawe v Public Trustee [1976] eKLR** the appellant pleaded the existence of a customary marriage with the deceased. The Court of Appeal found that the customary rites had not been completed for a customary marriage to exist. However, the court went ahead and presumed the existence of a marriage despite the doctrine of presumption of marriage having not been pleaded by the appellant. The doctrine therefore operates as a legal mechanism through which courts infer the existence of a marriage from proven facts, especially where strict proof of formal rites may be contested as was the case in **Hortensiah Wanjiku Yawe v Public Trustee** (supra). 53. Even though the Respondent contended that the Appellant attempted to submit on matters not pleaded in the plaint, it is clear that the issue of presumption of marriage addressed by the trial court. This demonstrates that the issue arose from the evidence on record and was properly before the court for determination. It is trite that a court may determine an issue which has been left to it for decision and on which evidence has been led, even where the issue was not expressly pleaded, particularly where no objection was raised. The evidence regarding the appellant's relationship with the deceased, their cohabitation for nine years and the existence of their three children was placed before the trial court without objection and that the trial court subsequently considered and determined whether a presumption of marriage arose from those facts. 54. It is the Appellant’s final contention that he was the deceased’s husband and thus entitled to pay his last respect to his deceased wife by burying her. As noted from the preceding paragraphs, it is clear that the deceased had established a home with the Appellant and raised their children. It would be unfair to deny the Appellant the right to inter the remains of the deceased yet the deceased’s former husband had declined to do so. He thus urged this court to find that his appeal has merit and that the same be allowed and that the Judgment and decree of Senior Resident Magistrate’s Court Ukwala, delivered on 19th September 2025 be set aside and substituted with Judgment of this Court allowing the appellant’s suit as prayed thereon and that this court do issue an order of exhumation of the deceased’s body wherever she is buried by the respondents for re-burial by the Appellant plus costs. 55. It is my considered view that it is quite unfair to have the remains of the deceased interred elsewhere instead of the place where she had called home and where she had lived peacefully with her husband and children for a considerable period of time before she died. The several photographs exhibited by the Appellant showed the deceased in company of the Appellant and their children in happier times and thus the remaining family members comprised of the Appellant and the children would find justice if the remains of the deceased are interred at her matrimonial home where her spirits would be settled. I find that the justice of the case warrants a reversal of the trial court’s order. The issue of the dispute over the assets of the deceased would be addressed in the appropriate forum at the appropriate time during the confirmation of the grant over the estate of the deceased. 56. In view of the foregoing observations, it is my finding that the Appellant’s appeal has merit. The same is allowed. The trial court’s judgement dated 19/9/2025 is hereby set aside and substituted with an order dismissing the Respondent’s counterclaim and entering judgement for the Appellant as prayed in the plaint in terms of prayers (c ) and (d) thereof. As the deceased has already been buried, an order is hereby issued for the exhumation of the deceased’s remains wherever she has been buried by the respondents for re-burial by the Appellant and that the Appellant shall involve the Respondents in the exercise. Each party to bear their own costs of the lower court and in this appeal. Orders accordingly. **Dated and delivered at Siaya this 2nd day of July 2026.** **D.KEMEI** **JUDGE** **In the presence of :** 1. **Ojienda.................................................for Appellant** 2. **Wanyangu for Namada................................for Respondents** 3. **Maurice.............................................................Court Assistant**