A court in Mombasa has allowed a widow to finally bury her husband in their matrimonial home in Nairobi against the will of her in-laws who wanted the corpse buried in their ancestral home in Rabai, Kwale County.
Chief Magistrate Evans Makori ruled that Neo Lekatsa Baya can proceed to bury the husband Clyde Baya Kijana at their home in Ngong.
“An order does and is hereby issued to allow the widow herein seven days hereof to take the remains of Dr Clyde Baya Kijana from Port Reiz Mortuary and bury the same at his matrimonial home at Ngong, Nairobi,” said the magistrate.
Mr Makori said Baya’s family was at liberty to participate in the funeral and perform Mwamoni last rites in Ngong.
Neo had filed a petition seeking the court’s intervention to bury her husband after her in-laws stopped her from retrieving the body from the morgue.
In a counter-petition, Baya’ younger brother Rophas James Baya and his cousin Peter Gichuchu asked the court to order that the body be buried at their ancestral home in Rabai in accordance with the burial traditions and customary laws and rites of the Mwamoni Clan.
The family alleged that if their son is not buried at Rabai, it would attract a curse to their clan. Baya’s family alleged that Neo mistreated their son and that he might have been poisoned after consuming food at his home in Ngong.
Neo’s lawyer Ilham Said had argued that the said customs were inconsistent with article 27 of the Constitution that provides for equality and freedom from discrimination. “Any customary law that is inconsistent with the Constitution should be declared null and void. The customary Rabai customs quoted is inconsistent with article 27 of the Constitution and it discriminates women when it comes to burial,” said Said.
However, Baya’ family lawyer Christine Kipsang said that Kenya had not enacted any law in regards to the burial of deceased persons.
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