Mburu & 4 others v Mburu & 3 others; AIC Kijabe Hospital (Interested Party) (Civil Appeal E094 of 2025) [2025] KEHC 12574 (KLR) (Family) (16 September 2025) (Judgment)
Neutral citation:
[2025] KEHC 12574 (KLR)
Republic of Kenya
Civil Appeal E094 of 2025
H Namisi, J
September 16, 2025
Between
Geoffrey Nganga Mburu
1st Appellant
Alice Wambui Mburu
2nd Appellant
Rosemary Njeri Kirika
3rd Appellant
Regina Muthoni Mburu
4th Appellant
Patrick Karanja Mburu
5th Appellant
and
Ides Wairimu Mburu
1st Respondent
Joyce Muthoni Mburu
2nd Respondent
Hannah Wanjiku Mburu
3rd Respondent
Anthony Kinani Mburu
4th Respondent
and
AIC Kijabe Hospital
Interested Party
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court at Nairobi by Hon. G.M. Gitonga delivered on 12 June 2025 in Civil Case No. E81 of 2024)
Judgment
1.This appeal concerns the question of where to lay the deceased to rest when his life choices seem to diverge from the customs of his ancestors. Such disputes, which pit family against family, are among the most difficult that the Court is called upon to adjudicate, as they invariably leave one faction grieving not only their loss but also the outcome of the litigation. In these emotive contests, the law must strive to be a therapeutic agent, providing a just resolution in grounded established principles.
2.This dispute is a poignant and deeply divisive one, concerning the final resting place of the patriarch, Mburu Kinani, who passed away on 20 November 2024. The Appellants are the children of the Deceased’s second wife, Magdalene Waithera Mburu (deceased), while the Respondents are the children and grandchild of the Deceased’s first wife, Phelis Wanjiru Mburu (deceased).
3.The battle began in the lower court. In their Plaint, the Respondents contended that the Deceased, as a man subject to Agikuyu customs, ought to be buried at his ancestral home in Gatanga, Muranga county, where his parents and his first wife, Phelis Wanjiru Mburu, are interred. The Appellants vehemently opposed this position, asserting that the Deceased’s final wishes, his life choices, and his personal law dictated that he be buried on his own land in Gilgil, Nakuru County. It is at Gilgil that the Deceased had resided for over four decades, established his home, and laid his second wife to rest in a family graveyard that he had set up.
4.Upon hearing the matter, which included the testimonies of 21 witnesses, the trial court found in favour of the Respondents and directed that the Deceased be buried in Gatanga. In his judgement, the trial Magistrate pointed out that the intention of the court was not to cause a division. The trial court noted that almost invariably, the decisions regarding burial disputes will rest on the circumstances of each case.
5.Aggrieved by the judgement, the Appellants lodged this appeal on the following grounds:i.The learned Magistrate erred gravely in law by assuming jurisdiction to hear and determine the Application and Plaint dated 26 November 2024 to wit: the Honourable Magistrate lacked territorial jurisdiction to handle a burial dispute in Nairobi as the subject of the dispute, being the burial site of the Late Mburu Kinani, was either Gilgil or Gatanga;ii.The learned Trial Magistrate erred gravely in law and fact by completely disregarding the express and unequivocal wishes of the late Mburu Kinani that he wanted to be buried next to his wife, Magdalene Waithira, in his land in Gilgil at the family burial site that he set up himself;iii.The learned Trial Magistrate erred gravely in law and fact by completely disregarding the evidence that was tendered before him to show that the express and unequivocal wishes of the late Mburu Kinani were that he be buried next to his wife, Magdalene Waithera, in his land in Gilgil at the family burial site that he set up by himself;iv.The learned Trial Magistrate erred gravely in law and fact by holding that the late Mburu Kinani ought to be buried in his ancestral land in Gatanga, when the late Mburu Kinani did not have any property interest in Gatanga as at the time of his demise;v.The learned Trial Magistrate erred gravely in law and fact by completely disregarding the fact that the Deceased had spent over 40 years of his life prior to his death in Gilgil and even set up a family graveyard in his property in Gilgil;vi.The learned Trial Magistrate erred gravely in law and fact by purporting to use the biological status of parties to determine proximity to the Deceased in the dispute when the court itself had categorically stated that the biological status of the parties was inconsequential to the determination of the burial dispute that was before it;vii.The learned Trial Magistrate erred gravely in law and fact at paragraph 59 of its judgement by shifting the burden of proof on the question of the Respondents’ paternity to the Appellants when the burden rested entirely on the Respondents;viii.The learned Trial Magistrate erred gravely in law by showing open bias against the Appellants in violation of the right to a fair hearing to wit:a.The learned Trial Magistrate deliberately misled the Appellants by categorically stating in open court that the question of biology of parties was not an issue of determination in the burial dispute, then went ahead to solely use it as a basis for determination of the dispute;b.The learned Trial Magistrate failed to acknowledge that Geoffrey Nganga Mburu was the biological child of the late Mburu Kinani despite being the only party that tendered evidence in terms of a birth certificate;c.The learned Trial Magistrate erred gravely in law and in fact by holding that Geoffrey Nganga Mburu had pleaded that he was not the biological son of the late Mburu Kinani.ix.The learned Magistrate erred gravely in law and fact by applying Kikuyu customary law to determine the burial site of the late Mburu Kinani and in so doing completely disregarded the civil union that was between Mburu Kinani and the late Magdalene Waithera and the Christian life of the late Mburu Kinani;x.The learned Trial Magistrate erred gravely in law and fact by failing to take into consideration the acrimonious relationship that existed between the late Mburu Kinani and the Respondents herein including but not limited to the poisoning of the Late Mburu Kinani and open letters by P13 and her mother decreeing the Deceased as unwanted;xi.The learned trial Magistrate erred gravely in law and fact by trivialising the conduct of the Respondents towards their deceased father by stating that those were normal family quarrels in a polygamous set up when the evidence on record clearly showed the contrary.
6.The Respondents filed a Memorandum of Cross Appeal on the following grounds:i.The Learned Magistrate erred substantially in law by failing to make a determination that the Appellants placed any material before the Court for determination. This is informed by the fact that the Appellants never filed any document in the trial Court and the Court disregarded to look at its record and the CTS system to effect of substantiating the submissions of the Respondents herein;ii.The Learned Magistrate erred in law having perused documents not filed in Court and relying on such documents to analyse facts before the Court thereby coming to erroneous findings;iii.The Learned Magistrate erred substantially in law by not making a finding that he was bound by the decision of the Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR;iv.The Learned Magistrate erred in law and in fact having failed to observe and make a finding that the deceased, Mburu Kinani, never established a home in Gilgil and that as rightfully contested, the home in Gilgil was actually a colonial house built by a white settler who had occupied the land before transferring it to Kanyeki Farmers Co-operative Society Ltd.v.The Learned Magistrate erred in law and in fact by making a finding that the deceased and his first wife Phelis Wanjiru Mburu were estranged without any tangible evidence leading to such a finding of fact;vi.The Learned Magistrate erred in law and in fact by failing to make a determination that DW 2, DW 3, DW 5, DW 7 and DW 8 committed perjury and that their testimonies were unreliable and could not hold probative value;vii.The Learned Magistrate erred in law and in fact by failing to make a determination that the alleged video of the deceased allegedly recorded by DW 7 could not be ascertained as to when it was made and who recorded it in line with the requirements of Section 106B of The Evidence Act and based on the evidence before the Court;
7.The appeal was canvassed by way of written submissions.
Analysis & Determination
8.I have carefully considered the grounds of appeal and the rival submissions. This being a first appeal, the role of this Court as the appellate Court of first instance is well settled. This Court is duty bound to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This Court, nevertheless, appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings as was held in Mwanasokoni – vs- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –vs- Kiruga & Another (1988) KLR 348.
9.Further in Mbogo & Another vs. Shah [1968] EA 93, the Court stated:
10.Before delving into the appeal, one issue for determination is the admissibility of the Supplementary Record of Appeal. The issue has since been determined vide Ruling of this Court delivered on 16 September 2025. The Supplementary Record of Appeal is, therefore, admissible for consideration in this appeal.
11.The grounds of appeal and cross appeal by the Appellants and Respondents, respectively, can be synthesized into the following issues for determination:i.Whether the trial court erred in law by assuming and exercising territorial jurisdiction over the dispute;ii.Whether the Deceased’s burial wishes were proven to be ascertainable;iii.The applicable framework for determining the place of burial.
a. Territorial Jurisdiction
12.The Appellants argued that the trial Court in Nairobi lacked territorial jurisdiction to entertain the suit, given that the competing burial sites are in Gatanga, Muranga County and Gilgil, Nakuru County. They termed the filing of the suit in Nairobi as forum shopping. The Respondent countered that for a Chief Magistrate’s Court, with jurisdiction throughout Kenya under section 3(2) of the Magistrates Court Act, the place of suing is a matter of administrative convenience rather than a substantive jurisdictional bar.
13.While Section 15 of the Civil Procedure Act dictates the local limits for institution suits, the Magistrates Court Act is the substantive statute conferring jurisdiction. The Resident Magistrate’s Court, which includes the Chief Magistrate’s Court, has jurisdiction throughout the Republic. Judicial pronouncements have clarified that where a conflict arises between these two statutes, the later statute, is deemed to amend the earlier one.
14.In Simon Kiarie -vs- Samuel Muigai Thuku [2005] eKLR, Visram, J. observed that the place of filing a suit for Resident Magistrates’ Courts is an administrative decision driven by logistical convenience, and these courts possess territorial jurisdiction throughout Kenya. Similarly, in Ruth Gathigia Kamunya & another v George Kimani [2015] KEHC 5233 (KLR) Aburilli, J emphasised that the Civil Procedure Act primarily governs procedure, while the Magistrates Courts Act confers jurisdiction. This position was affirmed in John Maraka Wekesa V Patrick Wafula Otunga [2005] KEHC 369 (KLR) and Jedidah Katwa Kweyu v John Njoroge Ngige & Kenya Power & Lighting Co. Ltd (Civil Appeal 93 of 2011) KEHC 2040 (KLR).
15.More fundamentally, however, the record shows that the Appellants acquiesced to the jurisdiction of the trial court. In his Ruling on the Preliminary Objection, the learned Magistrate acknowledged the administrative nature of the issue and invited the parties to appeal or object further. The Appellants’ counsel agreed to have the matter heard in Nairobi for expeditious disposal, without preferring an appeal. Having taken their chances on the merits and lost, they now seek to invalidate the entire process. A party cannot consent, participate fully in the proceedings and then turn around on appeal to challenge that very jurisdiction after receiving an unfavourable outcome. This amounts to approbation and reprobation, a conduct which this Court will not permit.
16.Beyond the doctrine of approbation and reprobation, this Court must register its disapproval of such litigation tactics. To allow a party to fully submit to a court’s process, holding a jurisdictional challenge in reserve as an “ace up the sleeve” to be played only in the event of an adverse judgement, would be to sanction an abuse of court process. It would encourage litigants to adopt a wait and see approach, thereby undermining the finality of trial court decisions and clogging the appellate system with procedural appeals that ought to have been settled at the outset. This ground is, therefore, dismissed not only for being unmeritorious in law, but also for being contrary to the principles of judicial economy and the overriding objective of the Civil Procedure Act to facilitate the just, expeditious, proportionate and affordable resolution of disputes.
b. Ascertainability of the Deceased’s Wishes
17.The law in Kenya, while recognising that there is no property in a dead body and a person cannot dispose of it by Will, nonetheless holds that the wishes of the deceased, though not legally binding, should as far as practicable be given effect. This was reiterated in Jacinta Nduku Masai -vs- Leonida Mueni Mutua & 4 Others [2018] eKLR, and Apeli & Enoka Olasi -vs- Prisca Buluka [1980]eKLR. However, these wishes must be clearly ascertainable, specific and unequivocal.
18.In Samuel Onindo Wambi v C O O & another [2015] KECA 620 (KLR), the Court of Appeal held thus:
19.In SAN vs. GW, Civil Appeal No. 1 of 2020 [2020] eKLR the Court of Appeal (Ouko (P), Gatembu & Murgor, JJ.A.) expressed itself thus:
20.The central question, therefore, is whether the Appellants proved the existence of such a wish on a balance of probabilities
21.The Appellants contended that the Deceased had expressed “express and unequivocal wishes” to be buried in Gilgil next to his late wife, Magdalene Waithera. They presented several witnesses and a video recording to support their claim. DW1, Bishop David Karethiu, DW2 James Wanderi, DW3 Joseph Kangethe and DW5 Peter Chomba, all testified that the Deceased had, on several occasions, particularly around the time of the burial of his second wife, Magdalene Waithera, stated his wish to be buried in Gilgil next to her.
22.The most significant piece of evidence was a video recording. DW7, Nurse Pamela Gakii, testified that she recorded the Deceased on her phone on 2020 at St. Mary’s Hospital, wherein the Deceased had stated his wish to be buried in Gilgil. However, this evidence is beset with profound and irreconcilable contradictions. In the Certificate of Electronic Evidence filed by the Appellants, DW8, Geoffrey Nganga Mburu, swore that the video was retrieved from the Deceased’s mobile phone. DW7 testified under oath that she recorded it on her own mobile phone. Her testimony was further undermined during cross-examination, where she gave conflicting accounts of the date of recording, the language spoken, and the chain of custody of the video. These inconsistencies fatally wound the credibility of the video evidence.
23.The Respondents challenged the credibility of the oral testimonies. In cross examination, they highlighted inconsistencies regarding who was present during these alleged declarations. For instance, DW3 initially stated that he was alone with the Deceased when the wish was expressed, but later added that Magdalene Waithera was present. DW5 added other individuals to the list who were not mentioned by other witnesses.
24.DW1’s testimony regarding the deceased pointing at a burial spot was questioned due to the ambiguity of the photo and the lack of a visible grave site. DW3’s account of the Deceased’s wishes also lacked specificity and corroboration. The Respondents also highlighted that the narrative of estrangement and the alleged attempts to poison the Deceased were not sufficiently proven.
25.While the Appellants presented a consistent narrative through multiple witnesses, the severe credibility issues surrounding the video evidence, coupled with the inconsistences elicited in the oral testimonies, mean that this Court cannot, with the requisite degree of confidence, find that an express, unequivocal and verifiable wish was proven on a balance of probabilities.
26.In Johnstone Kassim Mumbo & 2 others v Mwinzi Muumbo & another [2018] KEHC 4587 (KLR), where the Court was faced with similar challenges, the Court found that where there are diverse statements that the deceased is alleged to have said with regard to his wishes and place of burial, and the Court cannot conclusively determine that the deceased said to who about his wishes, it would rely on customary law.
27.Similarly, in Florence Maweu & another v Bernard Mutinda Maweu & 2 others [2019] KEHC 11649 (KLR), Justice Odunga upheld a trial court’s finding that wishes were unascertainable due to lack of specifics.
28.Given the conflicting testimonies, inconsistencies and lack of clear corroborated evidence, this Court finds that the oral wishes of the Deceased regarding his burial place have not been proved to be unequivocally ascertainable. The trial court’s finding that the wishes of the Deceased could not be confirmed or verified is, therefore, upheld.
29.In the absence of clear wishes by the Deceased, what then is the applicable law? Both parties acknowledged the applicability of African customary law in burial disputes, provided it is not repugnant to justice and morality or inconsistent with written law. This is enshrined in section 3(2) of the Judicature Act.
30.Where the deceased’s wishes are unascertainable or unproved, the Court must turn to other principles to resolve the dispute. The main competing frameworks advanced by the parties are Kikuyu customary law and the doctrine of personal and legal proximity.
31.The Respondents’ case is founded on the assertion that Kikuyu customary law dictates that a man be buried at his ancestral home, next to his first wife. The Appellants, on the other hand, argue that the Deceased had embraced a Christian life, contracted a statutory marriage, and had for all practical purposes abandoned the customary way of life that would necessitate a burial in Gatanga.
32.The present case is a classic example of the tension between customary law and the realities of modern life. The law does not exist in a vacuum. As held in Sakina Sote Kaittany & another v Mary Wamaitha [1995] KECA 2 (KLR), courts are guided by customary law only so far as it is not repugnant to justice and morality. The modern constitutional and judicial trend is to prioritise the nuclear family and the choices made by individuals during their lifetime over the rigid application of custom.
33.In the absence of ascertainable wishes of the deceased, customary law generally prevails. In Martha Wanjiru Kimata & another v Dorcas Wanjiru & another [2015] KEHC 7090 (KLR), the Court held thus:
34.The doctrine of proximity, as articulated in the case of Ruth Wanjiru Njoroge -vs Jemimah Njeri Njoroge & Another [2004] eKLR, identifies the person with the fundamental proximity in law to the deceased as having the color of right of burial. The evidence on record is overwhelming in this regard. Firstly, it is not in dispute that the Deceased lived in Gilgil for over 4 decades. The Chief’s letter dated 26 November 2024 confirmed Gilgil as his last known place of residence. The Deceased established a home and even buried his second wife there. This was not a temporary sojourn; it was his life. As was held in Onderi v Ontweka & 3 others [2023] KEHC 19506 (KLR), where a person has established a home away from his ancestral land, that choice must be respected.
35.Secondly, the Deceased contracted a statutory Christian marriage with Magdalene Waithera on 14 March 2020 at a church in Gilgil. This was after almost 37 years of enjoying a union with her under customary marriage. This created a primary legal bond with his second wife and her children, the Appellants.
36.Thirdly, the evidence contained in the Supplementary Record of Appeal paints a clear and damning picture of the irretrievable breakdown of the relationship between the Deceased and the first family. In a letter dated 4 November 2009, the Deceased stated that following the mistreatment by the first wife, he had decided never to return to that house. A corroborating letter from Phelis Wanjiru stated that she no longer wanted to live with the Deceased. A further letter dated 5 November 2009 by Joyce Muthoni confirms her mother’s unwavering decision to separate. Such conduct, as held in Edwin Otieno Ombajo v Martin Odera Okumu [1996] KECA 158 (KLR), can extinguish a party’s customary right to bury the deceased. The first family’s long alienation from the Deceased, contrasted with the second family’s care for him in his final years, speaks volumes about where his attachments lay.
37.This Court places significant weight on the documentary evidence. Unlike oral testimony which is susceptible to the frailties of memory and the influence of present interests, the letters from 2009 provide a clear and untainted window into the reality of the relationship between the Deceased and his first family. Their contents are far more persuasive than the contested oral evidence presented by both sides regarding the Deceased’s state of mind.
38.The repugnancy clause in section 3(2) of the Judicature Act is not a static concept rooted in colonial era notions of justice. It must be interpreted through the lens of the values enshrined in The Constitution. These values include the protection of individual dignity, freedom of association and the right to choose one’s residence. The Deceased, over a period of four decades, exercised these constitutional freedoms. He chose to establish his home and family in Gilgil. He chose to enter into a statutory marriage, even after more than 30 years of a customary union. He chose to be with his second family. He chose to bury his second wife, Magdalene Waithera, there, where a grandchild had been interred earlier. To apply a rigid customary rule that effectively erases these profound, lifelong and constitutionally protected choices would be to diminish his dignity in death. The application of that specific customary norm in these specific circumstances is, therefore, repugnant not just to an abstract sense of fairness, but also to the concrete values that form the bedrock of our constitutional order.
39.It is, therefore, my considered view that the trial court erred in law by prioritising a contested customary norm over the Deceased’s lived reality.
40.This Court find that the fundamental proximity in this case is overwhelmingly established not by a single factor, but by the confluence of the Deceased’s entire life narrative. This includes the legal proximity created by his statutory marriage to Magdalene Waithera after the demise of his first wife; the geographical proximity of the four-decade residence in Gilgil; the familial proximity evidenced by his life with and care by the Appellants in his later years; and the emotional distance from the Respondents demonstrated by the clear documentary evidence of estrangement. It is this holistic view of a person’s life, not a singular reliance on contested customs or past legal status, that must guide this Court in determining where he should be laid to rest.
41.In the premise, the appeal must succeed. Before giving final orders, it is crucial to remind parties that a burial dispute has no bearing whatsoever on rights under the Law of Succession. Many a time, parties cling on to the corporal remains of their loved one and to the grave, assuming that this, in one or another, gives them more rights over others when it comes to succession. Nothing could be further from the truth.
42.Finally, I wish to borrow from the words of the trial court. “I am thus fully alive to the fact that whatever the outcome of this case, there will be one part of the family that will be unhappy with it. I, however, wish to point out to the parties that the intention of this Court is not to cause more divisions.”
43.It is hereby ordered that:i.The appeal dated 17 June 2025 is hereby allowed. The cross appeal is hereby dismissed;ii.The judgement and decree of the Hon. G.M. Gitonga delivered in Milimani MCFC E081 of 2024 on 12 June 2025 is hereby set aside in its entirety;iii.The final resting place of the late Mburu Kinani shall be his farm in Gilgil, Nakuru County, next to the grave of his late wife, Magdalene Waithera Mburu.iv.The burial shall be conducted in a manner that respects the Deceased’s Christian faith and his Agikuyu heritage, with the specific arrangements to be led by the Appellants, who shall accommodate the participation of the Respondents.v.The Interested Party is hereby directed to release the body of the late Mburu Kinani to Appellants.vi.Both families shall have the right to participate in the funeral arrangements and the burial ceremony;vii.Considering the nature of this dispute, each party shall bear its own costs.
DATED AND DELIVERED AT NAIROBI THIS 16 DAY OF SEPTEMBER 2025HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Appellants: Ms. Awuor h/b Prof Ojienda, SCRespondents: Mr. Kinyanjui & Danstan OmariInterested Party: N/ACourt Assistant: Lucy Mwangi