A couple separated for over seven years is battling in court over the right to bury their daughter, whose body has been lying in the mortuary within Nakuru since June 2023.
Rose Ndeti has moved to the High Court in Nakuru to appeal a magistrate court’s decision that barred her from burying her daughter.
Ms Ndeti, in her appeal before Justice Heston Nyaga, wants to be granted permission to bury her daughter Race Owelwa, in accordance with the Akamba customary law.
Ndeti says she has been taking care of Owelwa alone after her ex-husband Andrew Mariati abandoned them seven years ago. She said the two have lived separately, and she has had physical custody, care, and control of their daughter since childhood. However, after Owelwa died, Ndeti claims that Mariati moved to a court in Nakuru and successfully obtained orders stopping her from burying Owelwa.
She claims Mariati, in his application dated July 7, 2023, sought a permanent injunction barring her and her family members from participating in or interfering with Owelwa’s burial plans. “Despite me having physical custody of my daughter for over seven years when her father was not in the picture, the court still ruled in his favour,” she submits.
She avers that by the dint of the judgment, she and her family have been unfairly restrained from participating in the burial arrangements without any compelling reasons.
She faults Principal Magistrate Ruth Kefa for misinterpreting the Akamba customary law in her July 28, 2023 judgment.
Ndeti further argues that the court should not have allowed Mariati to bury Owelwa in accordance with Luhya customary law since Mariati abandoned her seven years ago.
Ndeti fears that unless the court issues the orders she is seeking, she would suffer irreparable loss.
She contends that her appeal raises serious issues of law and fact, regarding the customs and cultural practices of the Akamba community.
In response, Mariati says Ndeti’s appeal is founded on falsehoods and misrepresentations of facts. He says he has single-handedly taken care of their daughter Owelwa and paid her hospital bill and mortuary fees.
He retaliates that he has not barred Ndeti from participating in the burial arrangements. According to Mariati, Ndeti, who has no place of her own, wants to bury Owelwa in her parents’ home in Machakos.
Mariati insists that despite Ndeti having had Owelwa’s physical custody, he provided everything for his daughter. Justice Nyaga has ordered Ndeti to cater for mortuary charges incurred, from July 28, 2023, to the determination of her appeal. The case will be mentioned tomorrow.