SAN V. GW

JUDGMENT OF THE COURT

In burial disputes, the two questions that will always arise are, who has the right to bury the deceased and the place of burial. Customary law has been held to be the applicable personal law regulating burial disputes in Kenya. See Virginia Edith Wamboi Otieno v. Joash Ochieng Ougo and another No.4), (1987) KLR 407 (the SM case) and Kandie and 2 others v. Beatrice Jepkemoi Cherogony (2002) 2 KLR 613. But since customary law exists in almost all ethnic groups in Kenya with a homogeneous value system and the customs vary from one ethnic group to another means that the resolution of burial disputes will depend largely on the peculiar circumstances of each case.

Difficulties are bound to arise where, like this one, the deceased and the parties claiming the right to bury are governed by different customs, with the question being, which custom should be preferred. The SM case is also partially a manifestation of this cultural clash or conflict. But the clash is not conf…