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Court allows man to bury wife after eight-month legal tussle with children

By Jack Murima | Published Tue, August 28th 2018 at 11:46, Updated August 28th 2018 at 11:57 GMT +3

Kakamega High Court has granted a man who has been embroiled in a legal tussle with his children, orders to bury his wife.

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The children and their father had disagreed on where the deceased would be buried leading to an eight-month legal battle.

In his judgement, Kakamega Chief Magistrate Bildad Ochieng said the plaintiff failed to prove their claims against the defendant to the required balance of probability.

Meshack Bulinda and Evelyne Inganji had filed a civil suit against their father, Stephen Ingati, saying he (father) ought not to bury their mother, Geraldine Khatiala, as he had divorced her in 1992.

Ms Khatiala died on December 28, 2017 at Moi Teaching and Referral Hospital where she was receiving treatment.

The two who represented their seven other siblings maintained that their mother had occasionally told them to inter her remains in her matrimonial land in Lukusi parcel number Isukha/Ileho/18 and not in her ancestral land Isukha/Mukhonje/393 as their father had wanted.

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Mr Bulinda and Ms Inganji further argued that the defendant had divorced and abandoned their mother in 1992 therefore, the responsibility of burying her rested with them.

However, in his judgment read on his behalf by the Senior Principal Magistrate Thomas Muraguri, the trial magistrate said there was no proof that the defendant had divorced the woman.

“The defendant had married the woman in 1971 at a Catholic Church in Kitale having paid a dowry of eight cows and given Sh2,000 to her parents. The marriage between the two was never dissolved either customary or by court,” said the Magistrate.

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He observed that the defendant had bought the two lands in 1965 and 1970 respectively.

Khatiala body is being preserved at Kakamega County General Hospital after the plaintiffs got a temporary relief barring their father either by himself or his relatives, agents or assistants from interring the remains of their mother until the suit was heard and determined.

“It is abundantly clear that the defendant set up the two homes in Ilesi and Ileho. Being a teacher at Ilesi Primary School, he opted to reside at Ilesi while the deceased lived at Lukusi, which was proximate to Lukusi Primary School where she was a teacher,” said the magistrate.

Mr Ochieng’ ruled out a protracted land tussle on the alleged ancestral land dating back in 1996 showing that the claims of such a tussle was non-existent.

Ochieng added that the assertions by the plaintiffs that they will have a difficulty in accessing the graveyard of their mother due to the hostility of their relatives.

“In the upshot of the analysis, I am satisfied by the defendant’s assertions that under the Isukha customs the ultimate decision, duty and obligation to bury remains of a wife is solely the responsibility of the surviving husband and not the children. The defendant is at liberty to proceed with burial arrangements,” said Mr Ochieng’.

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