Customary burial rights tested in court as families fight to bury loved ones

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The late Simon Kabwebwe Ngetich who passed on in December 2022. 

A bitter legal battle over Simon Kabwebwe Ngetich’s body started when he breathed his last on December 26 last year.

Ngetich was the deputy principal of Tengecha Boys High School. His body has been lying at Tenwek Mission Hospital mortuary after his death triggered a burial dispute between two women.

The case was initially heard and determined by a Magistrate’s Court in Sotik. It then proceeded to the High Court following an appeal.

Magdalene Chebet Ngetich, through lawyer Kipkoech Ng’etich, in the suit filed at the Magistrate’s Court, sought to permanently restrain Evaline Chepkemoi Ngetich from interring the body of the deceased till the parties have consulted and involved her (Chebet) and her children on the rightful place to bury the deceased.

She also wanted the court to order the deceased to be buried at his home in Manaret.

Chebet accused Chepkemoi of planning to bury the deceased in her homestead at Yaganek village without involving her and her children.

She said Chepkemoi had demonstrated hostility towards her and her family and had barred her from arranging and attending the burial arrangements with the aim of violating the Kipsigis’ customary rites.

She stated that Chepkemoi was Ngetich’s second wife. Chebet stated that according to Kipsigis customary burial rites, all the wives and children of the deceased ought to be involved in the planning and burial of the deceased, adding that Chepkemoi had alienated the children of the first house from such arrangements.

It was Chebet’s argument that according to the Kipsigis’ customary burial rites, the remains of the deceased ought to be interred in the first wife’s homestead and not that of the second wife.

In response, Chepkemoi said she was the only legitimate wife of the deceased, having been married in 2001.

The marriage was solemnised at St Peter’s Catholic Church in Kaplong on December 14, 2018.

 Final interment

Chepkemoi told the trial court that Chebet was married to one Philip Mutai, and they operated a clinic within Litein. On April 3, the trial court held that Chepkemoi was the sole widow of the deceased and that the body be released to her for final interment.

It further directed that the funeral arrangements, including the service be done at the deceased’s home at Yaganek farm before the body is finally laid to rest at his ancestral home farm in Maranet.

Chebet, the court said, was at liberty to attend the funeral. Dissatisfied with the decision, Chebet and Chepkemoi lodged an appeal challenging the decision of the court.

Chepkemoi, in her appeal, said the trial magistrate relied on his own opinions and assumptions and not the evidence on record in deciding the matter before him.

She noted that the trial magistrate made an error in curtailing her rights to bury her deceased husband at Yaganek farm despite having found that she was the deceased’s, sole widow.

Chebet faulted the magistrate’s decision that Chepkemoi was the sole widow of the deceased.

Chebet, in support of her case, filed several witness statements, all of which stated that she had been married to the deceased under the Kipsigis customary law and that they established their matrimonial home in Manaret.

John Rop filed a witness statement in support of Chepkemoi’s case.

He stated that he was the Chairman of the Chebororek clan, where the deceased was a member. Rop said they held a meeting on March 2, 2023, where they recognised Chepkemoi as the legitimate wife of the deceased.

That the clan, he said, had considered that Chebet had lost her right to bury the deceased according to the Kipsigis’ customary rights after absconding and deserting her matrimonial home for over 20 years.

“Where then should the deceased be buried in accordance with the Kipsigis customary law? This court is not an expert in the Kipsigis customs and as such required assistance of an expert in Kipsigis customs to assist it in coming to a just conclusion as stated in the case of Nyariba Nyankomba (supra),” stated Justice Roseline Lagat-Korir of Bomet High Court in a judgment delivered last week.

The judge noted that a court is not bound by expert opinion, but can use the expert opinion as a persuasion or in drawing a conclusion.

Kipsigis customs

She noted that none of the witnesses by either party demonstrated they were experts in Kipsigis customs and customary law. “This court is therefore forced to make a determination based on the available evidence,” read the judgment. The judge said having considered the witness statements and the various documents and pictures relied on by both parties, Chebet and her witnesses proved a close familial connection.

“As I have already noted earlier, there was no expert in Kipsigis customs and customary law presented to the trial court to assist it in understanding the culture and cultural practices amongst the Kipsigis community.

“Working with the scant evidence on record,  I am persuaded by Magdaline (Chebet) and her witnesses that the deceased should be buried in his ancestral home in Manaret,” ruled the judge. The judge faulted the trial court, which found that Chepkemoi was the sole wife of the deceased.

For the purpose of this burial dispute, the judge ruled that Magdaline Chebet Ngetich and Evaline Chepkemoi Ngetich were married to the deceased and entitled to bury him.

“In the end, having taken all factors into consideration, it is my finding that the deceased Simon Kabwebwe Ngetich should be laid to rest among his departed ancestors at his ancestral home in Manaret,” ruled the court. The judge said Chepkemoi and the family are at liberty to conduct any relevant rights, including a funeral service for the deceased at his Yaganek home.

The case of the two is not the only one. Over the years, courts have ruled they have the power to intervene to resolve burial disputes.

In the case of John Omondi Oleng vs Sueflan Radal (2012) eKLR, Justice Alfred Mabeya held that when it comes to the disposal of the body of a married man or woman, the spouse should play a leading role.

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