Authored By: David Kariuki Karimi
Mount Kenya University
(CORAM: NYARANGI, PLATT & GACHUHI JJA)
CIVIL APPEAL NO. 31 OF 1987
VIRGINIA EDITH WAMBOI OTIENO………………………….. APPELLANT
VERSUS
JOASH OCHIENG OUGO & ANOTHER ………………… RESPONDENTS
(Appeal from a judgment of the High Court at Nairobi, Bosire J)
Judgement delivered on 15th Day of May 1987
Statement of facts
An eminent criminal lawyer in Nairobi known as Silvano Melea Otieno, was pronounced dead upon arrival at the Nairobi Hospital on the 20th of December 1986. A necropsy report revealed that he had died of a complication resulting from coronary heart disease. His body was preserved at the Nairobi City Mortuary and awaited burial.A dispute, however, arose over the deceased’s burial place. The deceased’s widow, Virginia Edith Wambui Otieno, had desired to bury the body in Upper Matasia a location in Kajiado District. The defendants Joash Ochienng and Omolo Siranga who were the deceased’s younger brother and his clan member and distant nephew respectively, had intended to bury the same body in Nyamira Village, Nyalgunga sub-location in Central Alego, Siaya District. The question was; who had the legal right to bury the deceased? The plaintiff filed a suit on 30th December 1986, seeking an injunction to prevent the defendants or their representatives and agents from claiming and burying the body at Nyalgunga. The plaintiff also sought a declaration that she be made the person entitled to perform burial rites on the deceased at Matasia, against the defendants or their servants and agents; and costs. The plaintiff’s application was heard and granted, ex parte, by Shields J., on the same day it was filed viz, 30th December, 1986.
Procedural history
The case had gone through the High Court, where it was first heard. The contention there wasAbout who had the right to perform the burial rites on the deceased and where he ought to beBuried. The defendants desired that the remains be buried in Nyamira Village, Nyalgunga Sub-location in Central Alego, Siaya District. The deceased, however, desired that the body Be buried in Upper Matasia, Kajiado District.The High Court through Justice Bosire J. Directed that the body be handed over into the Custody of both the first defendant Joash Ochieng and the plaintiff Virginia Wambui Otieno For burial at Nyamira Village, Nyalgunga sub-location, Siaya District. The body was to be Buried according to Luo Customary Law subject tot he obtaining of the necessary permits Against the earlier injunction to move and bury the deceased’s remains. The plaintiff appealed the decision of the High Court citing the error of the High Court trial Judge in discounting the witness evidence from the plaintiff and the deceased’s two sons that Presented that the deceased had expressed wishes to be buried in Upper Matasia where his Matrimonial home is. The appeal also cited grounds that: it was an error to find that the first Defendant was the head of the deceased’s family after S.M Otieno’s death, that failure to findThat burying the deceased in accordance to Luo customary Law was repugnant to justice and Morality was discrepant with written and applied laws in Kenya among others.The Court of Appeal upheld the decision of the High Court stating that there was nothing Within the relevant Luo Customary Law delineating the burial of the deceased that was Repugnant to justice and morality.
Issues
The main and identified legal issues were as follows:
- What, if any, is the Luo customary law in regard to the burial of the deceased?
- Was the deceased subject to the Luo customary law?
- What law applied to the deceased in regard to the burial of his body?
- Who is entitled to bury the body of the deceased
- Who is to bear the costs of this suit?
Holding
- The court had been established by witness testimony and defence evidence that the Claims by the defendants on Luo Customary Law were veritable. There was no Evidence to contradict their claims.
- The deceased had shown, and it was proven by witness evidence, that he was subject To Luo customary law by espousing to other matters within it outside of his marriage.
- According to the Judicature Act section 3(2), African customary laws are applicable in Kenya, and so, since the deceased was subject to Luo Customary laws the same laws Applied to his burial.
- The responsibility to bury the deceased fell on his family and so since the both the Defendants and the plaintiff were the deceased’s family, they were all given the duty toDischarge of the burial rites.
- Both parties in the suit were liable to costs in the High Court decision, but no Direction was given as to costs in the Court of Appeal Decision.
- No. The court found that the deceased remained subject to Luo Customary Laws
- No evidence was adduced as proof that any of the relevant Luo Customary Laws were Repugnant to justice and morality or that those customary laws were inconsistent with Any written laws
Reasoning
The Court of Appeal was convinced for the evidence adduced by both the plaintiff and the Defendants in the case that, there was nothing to be regarded as repugnant to justice and Morality in the Luo Customary Laws as pertained the burial rites and intended burial Ceremony and location of the deceased.
Citing section 3(2) of the Judicature Act, the bench found that the courts of the nation are also Instructed by African Customary Law on condition that those laws are not inconsistent with Any written law and are not repugnant to justice and morality. It cited the case of Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters in holding that reasonable caution Need be applied in the consideration of common law to align with views that have general Sway in the nation of Kenya. The court stated: “We can therefore state in the course of developing a jurisprudence which ultimately will Have a Kenya identity, the courts are enjoined to turn to African customary law as well as To the applied common law, to decision of the English courts and courts of Commonwealth countries. The elders, who are the custodians of African customary law, Assisted by the intelligentsia by the church and other organizations owe it to themselves And to their communities to ensure that customary laws keep abreast of positive modern Trends so as to make it possible for courts to be guided by customary laws.”
Section 66 of the Succession Act provided that the widow of a deceased was the preferred Administrator of a deceased’s estate, it did not, however, provide that the widow should and Could disregard relevant customary law on the burial
Judgment
The appeal was dismissed and the Court of Appeal ordered that the deceased’s body be Handed over Joash Ochieng and Virginia Wambui Otieno for burial at Nyamila Village,Nyalgunga Sub-Location, Central Alego, Siaya District, in accordance to Luo CustomaryLaw. The court gave no order as to costs.
Concurring and Dissenting opinions
The court of appeal concurred with the decision of the lower court and upheld its direction On the matter. The three judge bench of the court of appeal were in unanimous agreement on The decision made by the High Court. The case therefore had no dissenting opinions.
Analysis
The underlying conflict inherent in the co-existence of English Common Law and African Customary Law meant that Kenyan law had to answer to emerging issues regarding the Implementation and applicability of Laws in a way that would align with general Kenyan Sensibilities.The case is a classical example of the handicap existent in the inheritance of colonial-era lawsAnd not creating and learning from culturally appropriate jurisprudence. The inheritance of The English laws does, however, present an opportunity to tap from a great wealth of common Law and equity which is useful in deciding matters that have already been reasonably resolved. It is within and for this very reason that the case has a very close relationship with the the doctrines and maxims of equity.
In the High Court decision on the matter, which was upheld by the court of appeal, the judge stated:
It is pertinent to observe here that Kenya has not enacted any law with regard toburial of deceased persons. Nor is there is a statute of general application, in England, in that regard which was in force by 12th August 1897, which would by dint of section 3(1) of the Judicature Act, cap 8 Laws of Kenya, be applied to Kenya.
The trial judge, however, did endeavour to find a solution to the matter arising by use of
available laws in line with the maxim that – equity cannot suffer a wrong to be without
remedy. As was the case in Ashby V White, where a voter who was certified and registered
as a voter sought remedy when he was not allowed to vote. The Court of Appeal also
observed that:
“The formal situation is that the common law and doctrines of equity as well as thestatutes of general application which are relevant and the procedure and practice observed in courts of justice in England are to be applied to fill up what is not provided for in the written laws in conformity with the aims of the Constitution.”This statement is in line with the maxim that – equity cannot suffer a wrong to be without remedy – and in line with the Judicature Act Section 3(1) (c) which states:
subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application inforce in England on August 12, 1987, and the procedure and practice observed in courts of justice in England at that date; but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.The High court pronouncement also demonstrated the maxim that equity acts in personam.Since the deceased was proven to be subject to Luo Cusstomary Law, the fact that he had notbeen to his ancestral home in a long time did not negate that he was still subject to those laws.As was seen in the case of Penn v. Lord Baltimore, where the plaintiff sought remedy for a land boundary dispute against English citizens and residents and received such remedy eventhough the land in dispute was in America.
Section 3(2) of the Judicature Act, Cap 8 Laws of Kenya, which in pertinent part reads: “The High Court, the Court of Appeal… shall decide all such cases accordingto substantial justice without undue regard to technicalities of procedure and without undue delay”.
Conforms with the maxims – delay defeats equity and that equity regards substance over form. In Parkin V Thorold equity allowed the defendant to complete the obligations of their contract within reasonable time even though the contract was set within a fixed period. The doctrine of delay defeats equity was demonstrated in the case of Chief Young Dede v.African Association Ltd which was the first case to introduce the equitable rule of acquiescence and laches.
