8.The Appellant was represented by the Law firm of Moindi & Company Advocates whilst Respondents were represented by the Law Firm of Mogeni & Company Advocates.
9.The Appellant’s counsel Mr. Manyara submitted that the fact that the trial court granted the respondents the right to bury the deceased without considering that she was the deceased’s spouse amounts to discrimination contrary to Article 27(3) of the Constitution.
10.Counsel submitted that the trial Magistrate recognized that the Law grants priority to a spouse over brothers with respect to the burial of the deceased but proceeded to give the body of the deceased to the 4th Respondent who is the brother of the deceased. It is submitted that the trial Magistrate did not determine the issue of who has the right to the body of the deceased.
11.It was counsel’s submission that the trial court found that the deceased had made a choice to be buried in Kiango, his ancestral home yet this was not backed up by any evidence; this decision was made without considering that the appellant had evidence that the deceased wanted to be buried at Kamulu.
12.It is Appellant’s submission that the trial magistrate erred in declaring the counter-claim competent yet it was not supported by the verifying Affidavit of 1st to 3rd Respondents.
13.The Respondents’ counsel Mr. Omogeni submitted that the issue of discrimination is a new issue which was not raised at the trial court. Therefore, it should not be raised in this Court. Counsel submitted that the appellant was married to the deceased vide Gusii customary laws and such Gusii customs and traditions recognize the manner in which a person should be buried which traditions the Appellant did not seek to challenge.
14.It was the Respondents’ case that they have not barred the Appellant from participating in the burial of the deceased as a widow; the dispute is on where to bury the deceased considering that it was the deceased’s wish to be buried at his ancestral home. The Respondents submitted that the deceased’s expressed and wished to be buried in his ancestral home and this is shown by the deceased’s participation as the chairman of the clan and also in the design that he built his house showing that he was comfortable dwelling among his people.
15.Counsel submitted that the counterclaim could not be rendered incurably defective as submitted by the Appellant’s. This is because the 1st to 3rd Respondents gave evidence before the court during the hearing. Counsel relied on Ahmed Dolai & Others V Kengen & Another (2018) eKLR and Research International East Africa Ltd V Julius Arisi & 213 Others
16.Counsel submitted that the deceased was a highly respected member of the Gusii Community and it is evident from the activities that he did including building a house as per the customs of the Gusii community; that the deceased fully embraced the customs and traditions of his community and should be buried in his ancestral home.
17.I have carefully considered the appeal herein, the grounds proffered, the parties’ submissions and the orders appealed against. This Court is alive to the fact that it did not hear the witnesses testify nor did it observe their demeanor, and therefore should be slow to reverse the trial court’s decision. It is however, not lost on this court that an appeal is in a way a retrial and the court must therefore reconsider the evidence, evaluate it itself and draw its own conclusions. In Oluoch Eric Gogo v Universal Corporation Limited  eKLR and in Peter M. Kariuki –vs- Attorney General  eKLR the court held inter alia as follows:
18.The above holding captures the locus classicus decision in the case of Selle v Associated Motor Boat Co.  EA 123 where it was held that:
19.I shall determine issues raised based on the grounds of Appeal before the court and at the same time weigh evidence before the trial court on the grounds raised by the Appellant.
20.Grounds 1-5 deal with the right to bury the deceased. The Appellant argued that the trial Magistrate did not consider that the Appellant being the spouse of the deceased has priority over any other person to bury the deceased. From the Judgment of the trial court which is found from page 201-220 of the Record of Appeal, the trial court discussed the issue of whether the right to burry was an issue before the court. The trial magistrate stated that the law recognizes that a spouse has priority over the rest when it comes to who should burry the deceased. The trial Magistrate also took note of the fact that the deceased spent most of his time with his spouse and the Appellant was present even when the deceased was being crowned an elder of the Mogunde clan in Kisii community. The trial magistrate stated that what was before her was not who has the right to bury the deceased but where to bury the deceased.
21.On this issue, as to who has the right to the body of the deceased, it is to be noted that all the parties in this case are relatives of the deceased and are therefore entitled to bury their deceased. There is no property in a dead body. However most African communities show respect to their loved ones by honoring their wishes. The trial magistrate rightfully held that the right to bury was not a dispute before the trial court.
22.Grounds 6-8 of the Memorandum of Appeal as raised by the appellant deal with failure by the trial magistrate to consider the wishes of the deceased in ordering that the deceased be buried at his customary home at Kiango in Kisii.
23.The trial Magistrate in considering where the deceased should be buried used Article 44 of the Constitution which is to the effect that every person has the right to participate in the cultural life of the person’s choice. The trial court went on to state that there was no controversy that the deceased was practicing Gusii Customary Law; the trial court was guided by the fact that the deceased married the Appellant through the Gusii Customary Law and the deceased was appointed as an elder of Mogunde clan. The trial court considered the evidence of PW2, Haron Onderi Okindo the second son of the deceased who testified that the deceased had not expressed where he wished to be buried but it was the wish of his immediate family that he is buried in Kamulu. The trial court strongly relied on the evidence of PW2 who further testified that the deceased exercised Gusii Customs and did not divorce himself from his ancestral home; that it was the deceased’s desire to stay at his ancestral home longer.
24.The trial court was of the view that burying the deceased at Kamulu would be contrary to what the deceased wanted. The trial court in coming up with the decision to have the deceased buried at his ancestral home in Kiango gave the following reasons: that the deceased desired to live longer in Kiango and had the intention to build a new house; that the deceased never divorced himself from his people; that the right of a spouse to bury a spouse is not absolute and that Article 44 of the Constitution allows for one to exercise customs and traditions of his choice.
25.The trial court when coming up with its decision placed reliance on the evidence of PW2 who is the son of the deceased. It is not clear how the trial court deduced that it was the deceased’s wish to be buried at Kiango yet according to the evidence of PW2 he stated at cross-examnation that “if I stated that my father told me to be buried at Kamulu, I would be lying”. Could it be that trial court understood that statement to mean that the deceased wished to be buried in Kiango?. PW1 the widow of the deceased testified that she spent most time with the deceased who had projects in Kisii that she would frequently travel to see how the projects were progressing. PW1 testified that the deceased always stated that Kisii was their ancestral home but their main home was in Kamulu. PW1 also stated that the deceased had expressed his wish to be buried at Kamulu in the event of his death.
26.The Defendant witnesses also testified that it was the desire of the deceased to be buried in Kiango where the deceased had constructed a house with two doors. According to the witnesses, a house built with two doors indicates that the deceased had in mind in the event of death, the rite of being taken into his house through one door and out of the house through the other door. PW3, Boniface Gwaka Onderi, the first son of the deceased also testified that even the Kamulu home was constructed with two doors. According to PW2 the house built in Kisii was in bad state and the deceased never repaired it; that if the deceased had the intentions of living in that house, he would have repaired it.
27.In light of the evidence presented before the trial court, the parties are claiming that the deceased expressed his will to be buried in Kiango and also in Kamulu. I do not find any piece of evidence showing the express statement of the deceased on the place where he preferred to be buried. I therefore disagree with the trial Magistrate on the decision that the deceased desired to be buried in Kiango. Both sides claim that the deceased’s expression was done orally.
28.In James Apeli & Enoka Olasi vs. Priscilla Buluku Civil Appeal No. 12 of 1979  KLR 777, it was held by the Court of Appeal that:
29.In Re Estate of Evanson Mbugua Thong’ote (Deceased) Succession Cause 2519 of 1998  eKLR Judge Musyoka stated that:-
30.The appellant claims that the deceased expressed his desire to be buried in Kamulu which he considered his home, the Respondents claim that it was the deceased’s desire to be buried in Kiango his ancestral home. From what the parties are saying about the deceased, he seemed to have been an esteemed member of the society who had almost everything figured out. It is highly unlikely that he would have been confused on his resting place; he seems to have been someone who would know that giving such contradictory statements would bring conflict to the family.
31.In this regard I find that the deceased had not declared his wish as to his final resting place as no evidence has been provided by any of the parties to prove the same.
32.Where then should the deceased be buried? As earlier mentioned, the trial magistrate was of the view that the deceased should be buried at Kiango due to the fact that he exercised the Gusii customs and traditions and he always paid frequent visits to his ancestral home. The magistrate relied mostly on the evidence of PW2 who in his testimony stated that the deceased did not divorce his customs.
33.The Defendant witnesses testified that the deceased practiced Gusii customary laws and traditions; that he even built his house in accordance with the Gusii customs which is an expression of where he wished to be buried since the house has a front door and a back door. According to the Gusii customs and traditions, when a house is built in that pattern, it means the deceased’s corpse would have to be carried through from the front door to the back door so as to be rested. PW3 testified that even the house in Kamulu is built in similar pattern. The Defendant witnesses also testified that the deceased should be buried in Kiango since he had been crowned an elder of the Mogunde clan and elders are supposed to be buried in their ancestral home.
34.Another reason why the defendants wish for the deceased to be buried in Kiango is that when the father to the deceased and the defendants was alive, he wished that all his children should be buried in the ancestral land. According to the Defendant witnesses, the deceased even buried his child in the ancestral land. The Defendant witnesses believe that since the burial rituals have already been done and the grave already dug in Kiango; the deceased should be buried there.
35.It was the defendants’ case that when the deceased fell ill, he travelled to the village where he stated that he wished to spend time in the village. When his condition worsened the deceased had to go back to Nairobi for treatment where he succumbed.
36.The Plaintiff’s witnesses on the other hand claimed that the deceased had spent years with them in Nairobi; had established a matrimonial home at Kamulu which is also built in the same way as the house in Kiango. PW1 who is the spouse of the deceased stated that she was married to the deceased through Gusii customary law but they have lived in Nairobi with frequent visits to the ancestral home. Plaintiff’s witnesses are the nuclear family of the deceased and they believe they should be given priority and be considered to bury the deceased where they wish to bury him at their Kamulu home.
37.From the statements of the witnesses, the deceased was a person who knew how to play balance. He was always building his family in Nairobi and also contributing to his community by making frequent visits and undertaking projects to help the community. The people involved in this dispute were closest to the deceased but they can’t seem to agree on where the deceased should be buried.
38.In Dinah Odhiambo Oyier vs. Hellen Achieng & 3 Others High Court Civil Appeal No. 14 of 2017  eKLR Cherere, J held that where the people who are legally closest to the deceased:
39.Also in Virginia Edith Wamboi Otieno vs. Joash Ochieng Ougo & Another Civil Case No. 4873 of 1986  eKLR Bosire J. held that:
40.Customary Law is one of the sources of Law in this country. Customary law is applied by dint of Section 3 (2) of the Judicature Act that provides that: -
41.In Dinah Odhiambo Oyier vs. Hellen Achieng & 3 Others (Supra), it was held that “…if African customary law is not caught up by the qualifications under section 3(2) of the Judicature Act then it must be given effect by the courts and must be applied in deciding cases before it but according to ‘Substantial justice’.”
42.In Sakina Sote Kaittany & Ano. vs. Mary Wamaitha  eKLR the Court of Appeal held that: -
43.It follows that where a finding has been made by a court as to the existence of a particular customary law, that finding may be relied upon in subsequent cases. The Gusii Customary Law in this case has been codified in case law in Oliver Bonareri Omoi & 5 others v Joseph Basweti Orogo  eKLR where it was held that:
44.Maraga J (as he then was) proceeded to state in the Bonareri case (supra) that:
45.I agree with Maraga J. The Kisiis are believed to have originated from the Congo and moved through the Mt. Elgon region of Uganda and later settled at the Kisii and Nyamira Counties of Kenya. Over the years due to land constraints and also for the desire of diversity, business and job opportunities, a population of Kisiis have moved from the Kisii and Nyamira Counties into other counties such as Kajiado, Mombasa, Narok, Nakuru, Machakos to name but a few. Most of them have established homes away from their original counties.
46.It is not new that Kisii people have been buried in the places where they have established homes. It does not mean that customs or traditions do not apply if one is buried away from Kisii or Nyamira.
47.In the instant case, the deceased being a Civil servant and mostly moving around during his working years established a home in Nairobi and built a matrimonial home in Kamulu which is way bigger than the house built in Kiango. Both houses are built to contain the front and the backdoor where the burial rite of carrying the body from the front door through to the back door can be done.
48.In the case of SAN V GW (2020) eKLR the court of Appeal stated that:
49.In the instant case, it is not disputed that the deceased married the Applicant under Gusii customary law, it is also not in dispute that the deceased had a home in Kamulu and another home in Kiango. It has not been argued whether the appellant is deserving of burying the deceased as the spouse. From the evidence before Court, it has been established that the Appellant has always been with the deceased; they were travelling together and undertaking projects together. None of the defendants’ witnesses has said anything that would render the Appellant undeserving of the remains of her husband. The issue that DW1 raised the issue about the Appellant changing the next of kin form from her name to the name of the 4th Respondent when the deceased was in the hospital was explained where it was stated that the Appellant would panic every time the hospital called her. This is a panic that everyone would go through if a loved one was to be in the same position as the appellant’s husband. The Appellant cannot be faulted or even rendered undeserving due to this single reason that happened a day before the deceased died.
50.As held by Maraga J in the Bonareri case (supra), the customary law of the Gusii demands that the widow or the widower of the deceased had the right to bury his/her spouse. In that regard I find that the Appellant herein has the right to bury the deceased.
51.Ground 9 of the Memorandum of Appeal as raised by the Appellant was failure by the learned Magistrate to render the counterclaim incurably defective since the Verifying Affidavit was not sworn by all the defendants. The Appellant sought for the counterclaim to be struck off since the verifying Affidavit was only signed by the 4th defendant and there was no written authority to sign on behalf of other defendants which is contrary to Order 1 rule 13 (1) and (2) of the Civil Procedure Rules.
52.The trial magistrate in declaring the counter claim competent relied on the Court of Appeal case of Research International East Africa Ltd V Julius Arisi & 213 others where it was held that “a court has a discretion in cases of non-compliance with Order 1 Rule 13 of the Civil Procedure Rules, 201o, to allow the parties to remedy the situation by complying with the rules of procedure. The trial magistrate further stated the issue of non-compliance with order 1 rule 13 was not raised in the pleadings and therefore could not be considered.
53.On this issue I agree with the trial Magistrate. When the appellant was served with the Counterclaim, she should have responded to it and raised the issue of non-compliance. It is trite that parties are bound by their own pleadings and new issues cannot be raised in the submissions.