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Judge defies succession customs, grants burial wish to second wife's family
The court said the first family’s long alienation from the elderly man, contrasted with the second family’s care for him in his final years, spoke volumes about where his attachments lay.
In a landmark decision that highlights the evolving nature of succession and family law in Kenya, a High Court judge has ruled that a 90-year-old man, Mburu Kinani, will be buried on his farm in Gilgil, Nakuru County, next to his second wife.
The ruling overturns an earlier decision by a lower court and defies a customary burial practice of the Agikuyu community that dictates a man be buried at his ancestral and first wife’s home.
Before Mburu died almost a year ago, he had made his wishes known as to where he was to be buried. However, a dispute arose following his death on November 20, 2024, as the children from his two wives could not agree on where to bury him.
The children of the first wife, Phelis Wanjiru Mburu, insisted that he had to be buried at his ancestral home in Gatanga, Murang’a County, where their mother was buried.
The children from the second marriage rejected this, insisting that their father's wish was to be buried on his Gilgil farm next to his second wife, Magdalene Waithera Mburu.
However, the documentary evidence of the elderly man expressing his wishes to be buried in Gilgil, including a video recording on his hospital bed, were disregarded by the court because of contradictions as to who recorded the video.
High Court Judge Hellene Namisi observed that since the elderly man had abandoned his customary way of life and embraced Christianity, the Agikuyu customs had to give way.
“Secondly, the deceased contracted a statutory Christian marriage with Magdalene Waithera on March 14, 2020 at a church in Gilgil. This was after almost 37 years of enjoying a union with her under customary marriage. This created a primary legal bond with his second wife and her children, the appellants,” said the judge.
The body of the 90-year-old patriarch has been lying at AIC Kijabe Mission Hospital mortuary since he died in November last year.
The dispute pitted Geoffrey Ng’ang’a Mburu, Alice Wambui, Rosemary Njeri, Regina Muthoni, and Patrick Karanja on the one hand and Ides Wairimu, Joyce Muthoni, Hannah Wanjiku and Anthony Kinani on the other hand.
Geoffrey and his siblings, the children of the second wife, argued that their father had expressed his wish to be buried in Gilgil.
Ms Wairimu and her siblings said the customs dictate that the elderly man must be buried where his first wife was laid to rest, thus in Gatanga.
The judge said the wishes of the deceased, though not legally binding, should, as far as practicable, be given effect.
The witnesses, including Bishop David Karethiu, said the elderly man had on several occasions, particularly around the time of the burial of his second wife, Magdalene, stated his wish to be buried in Gilgil next to her. They presented several witnesses and the video recording to support their claim.
However, the court said there were contradictions in the production of the video evidence.
“Given the conflicting testimonies, inconsistencies, and lack of clear corroborated evidence, this court finds that the oral wishes of the deceased regarding his burial place have not been proved to be unequivocally ascertainable. The trial court’s finding that the wishes of the deceased could not be confirmed or verified is, therefore, upheld,” said the judge.
The judge, however, overturned an earlier decision of the trial magistrate directing the body to be buried in Gatanga.
Succession
The judge also reminded wrangling family members that a burial dispute has no bearing whatsoever on rights under the law of succession.
She said many a time, parties cling on to the remains of their loved ones up to the grave, assuming that the right to bury the body, gives them more rights over others when it comes to succession.
“Nothing could be further from the truth,” said the judge.
She further noted that one part of the family will not be pleased with the outcome of the case. “However, I wish to point out to the parties that the intention of this court is not to cause more divisions.”
Mistreatment
Justice Namisi said for four decades, Mburu chose to establish his home and family in Gilgil and even chose to enter into a statutory marriage, even after more than 30 years of a customary union.
“He chose to be with his second family. He chose to bury his second wife, Magdalene, there, where a grandchild had been interred earlier. To apply a rigid customary rule that effectively erases these profound, lifelong, and constitutionally protected choices would be to diminish his dignity in death,” said the judge.
The court added: “It is, therefore, my considered view that the trial court erred in law by prioritising a contested customary norm over the deceased’s lived reality.”
Justice Namisi further added that there was a clear and damning picture of the irretrievable breakdown of the relationship between Mburu and his first family. She said in a letter, November 4, 2009, Mburu stated that following the mistreatment by the first wife, he had decided never to return to that house.
“A corroborating letter from Phelis stated that she no longer wanted to live with Mburu the deceased. A further letter dated 5 November 2009 by Joyce Muthoni confirms her mother’s unwavering decision to separate,” noted the judge.
The court said the first family’s long alienation from the elderly man, contrasted with the second family’s care for him in his final years, spoke volumes about where his attachments lay.
“The final resting place of the late Mburu shall be his farm in Gilgil, Nakuru County, next to the grave of his late wife, Magdalene,” said the judge.
The court said the burial shall be conducted in a manner that respects his Christian faith and his Agikuyu heritage, with the specific arrangements to be led by the Gilgil family and who shall accommodate the participation of the family from Gatanga.
