Woman Loses Court Battle To Bury Husband Who Died 11 months ago

A woman in Kisumu has lost the rights to bury her husband 11 months after his death, as a court has upheld his wish to be buried at his second wives home.

Mr Silvanus Nyang’wara Mwanja married Ms Siprosa Awino in 1996 but they got separated five years later. They did not have children.
Mr Nyangwara married Ms Grace Were in 1990 and they had five children.
He died in February at Life Care Hospital, where his body has remained to date.

ARGUMENTS

Ms Awino showed up on February 14 to stop Mr Nyang waras burial at his Sinoko home in Bungoma. She later moved the body to Bungoma County Referral Hospital mortuary and then went to court to seek consent to bury him. Senior Resident Magistrate Winfrida Onkunya ruled in June that the man be buried at his second wifes home but Ms Awino filed an appeal at the High Court. Ms Awino said Ms Onkunya misunderstood her husbands wishes on where to be buried as the dead cannot dictate what happens to their bodies.She further argued that the courts decision for the person closest to Mr Nyang’wara to bury him was irrelevant as all the witnesses said he should be buried at his first wifes home in Nyalenda.Ms Awino also said it had not been established, in line with Luo customs, whether her husband had a home in Bungoma.
Ms Were argued that Ms Awino neither checked on nor looked after Mr Nyang wawa since he was diagnosed with cancer.

The court also heard that Mr Nyang wara wished to be buried near a mango tree a few metres at his second wifes home.

His mother and sister agreed that he should be buried in Bungoma.

THE RULING

In his ruling on Thursday, Kisumu High Court Judge Fred Ochieng dismissed Ms Awinos application, saying the magistrates judgment court was fair and thus allowing the first wife to bury Mr Wanja.

“In a nutshell, I find that the judgement rendered was properly served based on analysis on evidences. The appeal fails and is therefore dismissed,” ruled the judge.

Judge Ochieng explained that there is no property in a dead body and that custody and procession belong to the executors until it is laid to rest.

He also said that Mr Nyang’waras, though not legally binding, must be granted.

The judge further noted that the man build two homes in Nyalenda and Bungoma and that he carried an axe, a hoe and a panga as required by Luo customs.

“I find the wish of the deceased to be buried in his home in Bungoma not contrary to the general laws or policies of Kenya and also applicable to persons who subscribe to the Luo customary law.”

The judge, however, granted Ms Awino a seven-day stay order to appeal the ruling.

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