Court taps into customs, denies siblings right to bury their own mother
By Robert Amalemba
| August 29th 2021
A court has tapped into the Maragoli “Omwandu” customary laws to order that a woman who married two husbands that later passed on be buried next to her first husband because the second, who cohabited with her for 60 years, was a mere wife inheritor.
Justice William Musyoka of the High Court in Kakamega observed that an 85-year-old Maragoli expert witness elaborated all about the custom in deciding the contested burial for the woman who bore the second husband eight children.
“He (customs expert) said a wife cannot bury two men in her lifetime. He suggested that the deceased having buried her first husband could not bury the one who inherited her under the ‘Omwandu’ customs,” said Justice Musyoka.
“This is the reason why, according to the witness, the woman never addressed the funeral gathering of her second husband. That implied, according to the witness, she was still the wife of the first husband and that being the case, her remains were for interment next to the first husband, and not her inheritor.”
In the burial dispute, three of the eight sons the woman bore wanted the judge to reverse a lower court’s decision that accorded the right to bury their mother to the closest kin of her first husband one Kenneth Kamalika Shaban.
Shaban is the grandson of the first husband of the woman, Musa Kamaliki. Mr Kamaliki married the woman for a short time and passed on leaving behind a son who died after giving birth to Shaban.
When the woman died early last year, her grandson Shaban, successfully sued before the Vihiga magistrate’s court to demand for the right to bury her in line with the “Omwandu” customs as the closest kin since his father (her first son from the first marriage who was supposed to bury her) was dead.
Hesbon Lumadede, Aggrey Agushoma and Mary Lovega the sons and daughter of the women were however aggrieved and moved to the high court. They wanted the superior court to reverse Senior Resident Magistrate Rose Ndombi’s decision of April 2020 which denied them right to bury their mother on their father Nashon Paka’s land at Kapkangani.
They said letting Shaban to bury their mother at Mudete amounted to misapprehending the content and extent of the “Omwandu” customs a thing that resulted in the lower court’s verdict that is “contrary to public interest”.
“The (lower court’s) judgment went against the principles of equity and against the declared wishes of the deceased in her over 60 year’s marriage to our father, Nashon Paka. It violated the constitutional rights of women by holding them slave to obsolete customary law application,” they pleaded in their court papers. “The ‘Omwandu’ laws are not omnipresent and are repugnant to justice and morality.”
They additionally raised the question as to whether the trial magistrate’s court had jurisdiction to handle the burial dispute and whether Shaban, a not-very-close relative of theirs, had standing to partake on the subject of their mother’s burial place. They petitioned Justice Musyoka to declare that as the children of the dead woman they possessed an unrivalled right than Shaban to bury their mother wherever they wish.
Shaban on his part argued that the trio’s mother was not married to their father, who never paid dowry-because in line with the Omwandu rituals a husband who inherits a wife cannot pay her dowry. He said that under the customs that bind marriage and burial among the Maragoli, taking dowry from two husbands came with consequences.
“Their mother remained the wife of my grandfather and, according to tradition, her body ought to be returned to her first husband’s compound and interred next to the first husband’s his (grave). So as the nearest surviving relative of my grandfather I have a better claim, traditionally, over the trio,” he said in his submissions urging the High Court to uphold the lower court’s decision.
In upholding the verdict Justice Musyoka said Shaban as the closest relative of his late grandfather, was vested with standing under customary law to assert the right to bury the deceased.
“Of course, the siblings were the nearest relatives of the deceased, being her children, as opposed to Shaban, who was her grandson. Under written law that would have clothed them with a greater right over him, but the personal law in this case was customary which granted greater burial rites to Shaban,” he said.
Musyoka further clarified that the lower court had jurisdiction to handle the burial dispute as outlined in section 3(2) of the Judicature Act which allows magistrates’ courts to adjudicate over burial disputes, where the parties are African as long as they are guided by African customary laws.
“The three siblings have not demonstrated how and why Maragoli customary law ought not to apply to the set of facts that were presented. No case law, nor statutory provision, nor a treatise by a learned scholar on Maragoli marriage and customs and burial rites, were cited,” said Musyoka.
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