KLR WEEKLY e-NEWSLETTER |
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| Issue 106| Newsletter Archive | Friday 14th May 2010 | |
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COURT ACCORDS DECEASED WOMAN HER LAST WISH By Andrew Halonyere, Advocate "The courts ought to give effect to the wishes of the deceased as far as possible unless for good reasons, for example if the wishes are contrary to custom. The question for consideration by this court therefore is whether Veronica’s wish is contrary to Luo custom.” Charles Onyango Oduke & another v Samuel Onindo Wambi [2010] eKLR (www.kenyalaw.org) The High Court accorded the wish of a deceased woman to be buried at a place of her choice. In a ruling delivered by Lady Justice Ali Aroni it was held that the conduct and attitude of Samuel Onindo Wambi, “Denish” (husband to the deceased) and his family were such that they were undeserving to bury the remains of Veronica (deceased) and they could not be heard to claim a customary right. The background to this case was that the plaintiffs, Charles Onyango Oduke and Moses Juma Oyola, the brother and adopted son to Veronica brought a suit against Samuel Onindo Wambi, Veronica’s father-in-law, challenging the Wambi family’s claim of customary law right of interring Veronica’s remains. It was the plaintiffs’ case that Veronica was married to Wambi’s son Denish. The two were blessed with two sons, who are both deceased. The two children were born with a strange disease which the 1st plaintiff described as cerebral palsy, autism and polio. The plaintiffs claimed that Mr. Wambi and his family blamed Veronica for the condition of the two children. That since the birth of the two children, Denish and Veronica’s relationship deteriorated because he left Veronica the burden of taking care of the children. They alleged that Denish had been involved in an accident in 1997. He was hospitalized in Kisumu and later transferred to Kenyatta National Hospital, where Veronica stayed with him for a number of months. On being discharged he joined and lived with the wife and the children in Kakamega. However, without consulting Veronica and in her absence the defendant took Denish away from the family home in Kakamega to Rongo. Denish had since stayed with his father away from his family and barring Veronica from visiting or taking care of him. The plaintiffs also claimed that in the year 2001 and 2005 respectively when the couple’s children passed away, Mr. Wambi and his family did not assist Veronica with preparation for the burial. In particular in 2005 at the burial of the second child, Mr. Wambi made derogatory remarks in relation to Veronica thereby making it clear that she was no longer welcomed and had no place in his home. It was their case that the defendant and his family abused, looked down upon, ostracized and banished Veronica from the family home and as a result of the mistreatment, Veronica established a home in Kakamega and on many occasions made it known to her family and friends of her wish to be interred on the said piece of land in Kakamega, in the event of her death. Veronica passed on following a road accident on the 10th of September, 2009. Although acknowledging Veronica was Luo by tribe and thus subject to Luo customary law, the plaintiffs argued that the marriage between Denish and Veronica was technically terminated and the defendant’s attitude did not accord him the customary law right to bury her. They told the court that she ought to be interred according to her wish on her piece of land in Kakamega, in accordance with the Catholic Church burial rituals. The plaintiffs further argued that section 3(2) of the Judicature Act conferred upon the court the discretion to apply customary law upon consideration of several factors but that the application of customary law was not automatic. The defendant on the other hand denied that Veronica had left a wish to be buried at Kakamega. He argued that if there was such a wish, it was not unequivocal as there was a place to bury her other than Kakamega. That to bury her in Rongo would be in accordance with the personal law of the deceased which was Luo customary law. The defendant claimed that customarily the right to bury Veronica rested on him and did not lie with the plaintiffs. It was the defendant’s case that Veronica and Denish remained married up to the time of Veronica’s death. It was therefore his wish to bury her at home next to her children. The defendant strongly contended that because Denish was sick, as the head of Wambi’s family; the right to bury Veronica lay with him. The main issue before the court was whether veronica had left a wish stating where she wanted to be buried, if the answer was in the affirmative, what was the effect of the said wish against the Luo customary law on burial of a married woman? The High Court after analyzing the evidence adduced by both parties to the suit established that indeed Veronica left a wish to be interred on her land. Being guided by Apeli v Buluki (1985) KLR at 77 where the Court of Appeal held “in cases such as this one, the most important rule is that the wishes of the deceased person, though not binding, must so far as possible be given effect to. “ The court also considered Edwin Otieno Ombajo v Martin Odera Okumu where the Court of Appeal stated that the right to bury the body of a married woman under Luo customary law ordinarily rests with her husband but the said right is not absolute, and that the said right under customary law may be impugned by unbecoming conduct on the part of the person on whom it rests. Lady Justice Ali Aroni observed that the conduct and attitude of the Mr. Wambi, Denish and their family to be such that they were undeserving to bury Veronica’s remains and they could not therefore not be heard to claim customary right. The court held ‘in the circumstances of this case substantial justice will only be achieved if the wish of Veronica is respected ‘. The judge however stated that although she found Mr. Wambi undeserving to bury Veronica’s remains, his wish to bury her could be seen as an attempt by him and the rest of his family to make amends with the dead. Moreover, the court noted that Veronica had not expressly barred Mr. Wambi and his family from participating in her burial. Accordingly the court directed that the body of the deceased be released to the plaintiffs for interment in the Kakamega property in accordance with Catholic rituals as the deceased had directed. |
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EVENT LISTING FOR MARCUS EVANS |
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Marcus Evans proudly presents a World Class ‘Best Practices for In-House Legal conference taking place on 5-6 August 2010 in Nairobi Kenya. From this conference you will gain a competitive edge through practical insights into improving the overall functioning of your legal counsel thus enabling your team to compete on a global level. Attend this informative event and gain practical insights into:
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Vol CXII –No 49 Dated May 14, 2010 THE COTTON DEVELOPMENT AUTHORITY APPOINTMENT IN EXERCISE of the powers conferred by section 34 (1) of the Cotton Act, the Minister for Agriculture, in consultation with the Cotton Development Authority Board, appoints- Crispin Ouma Amuono, to be cotton inspectors with effect from 7th May, 2010. S.J. KOSGEI ![]() GAZETTE NOTICE NO. 5078 TIMBOROA-ELDORET-TURBO-WEBUYE-MALABA QUARRIES INTENTION TO ACQUIRE LAND IN PURSUANCE of 6 (2) of the Land Acquisition Act, the Commissioner of Lands give notice that the Government intends to acquire the following land for the excavation of Timboroa-Eldoret-Turbo-Webuye-Malaba quarries.
Z.A MABEA ![]() GAZETTE NOTICE NO. 5079 TIMBOROA-ELDORET-TURBO-WEBUYE-MALABA QUARRIES INQUIRY IN PURSUANCE of section 9 (1) of the Land Acquisition Act, the Commissioner of Lands gives notice that inquiries for the hearing of claims to compensate people interested in land for the excavation of Timboroa-Eldoret-Turbo-Webuye-Malaba quarries shall be held at DO’s office Lumakanda on 16th June, 2010 and at Bungoma at DO’s office on 17th June, 2010 at 9.30 a.m.
Every person who is interested in the affected land is required to deliver to me not later than the day of inquiry a written claim to compensation. All interested parties should also appear for inquiries with copies of the following documents PIN NO. , copy of title deed to confirm ownership and electronic Funds Transfer form duly executed. This Gazette Notice revokes the Gazette Notice Nos. 276 and 277 of 16th January 2009 Z.A MABEA ![]() GAZETTE NOTICE NO. 5313 THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS ELECTION OF MEMBER OF PARLIAMENT IN EXERCISE of the powers conferred by section 41A of the Constitution of Kenya, section 13 of the National Assembly and Presidential Elections Act and Regulations 8 (3) and 14 of the Presidential and Parliamentary Elections Regulations, the Interim Independent Electoral Commission gives notice that:
NOTES:
Dated the 12th of May 2010. A.I. HASSAN ![]() GAZETTE NOTICE NO. 5314 THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS APPOINTMENT OF RETURNING OFFICERS IN EXERCISE of the powers conferred by section 43 of the National Assembly and Presidential Elections Act and regulations 3 (1) of the Presidential and Parliamentary Elections Regulations, the Interim Independent Electoral Commission appoints the persons specified in the second column to be Returning Officers for the constituencies specified in the first column of the schedule. Constituency Name of Returning Officer Name of Deputy Returning Officer Dated the 12th May, 2010.
A.I. HASSAN ![]() GAZETTE NOTICE NO. 5323 Notice is given to members of the public to raise any unresolved and outstanding issues with Bridges Capital Limited Company within forty-five days from the date of publication of this notice Dated the 29th April, 2010 STELLA KILONZO ![]() GAZETTE NOTICE NO. 5045 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed implementation of the proposed helipad construction. The helipad construction project will be located next to the Tribe Hotel, Village Market in Nairobi, Gigiri. The helipad section will be 15 meters in diameter. This will provide a landing and take off of helicopters. The site is locate on Plot No. Nairobi/Block 91/1322 and Nairobi/Block 91/133, Nairobi The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 5330 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed Kibera development programme. The proposed project has two main components: Water supply and Sewerage in Kibera Slum Area. The proposed project will cover the three villages of Soweto East, Silanga and Laini Saba. use of a disused murram quarry near Isinya, Kajiado District as a dumpsite by ABM for the disposal of slag form the lead making process. The items under the water supply component will include:
To address the sanitation situation in the area, various alternatives will be considered.
The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed petrol service station. The Proposed Project will entail development of a petrol service station which will include a filling area, service bay, tyre centre and mini shop. The project is located on L.R. Nos. 254, 255 and 256, Mwiki. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5232 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed petrol station. The proposed components of the proposed petrol service station will include the following: offices, service bay, toilets, car wash section, cafeteria, shop, mini supermarket, water/oil separator, three underground fuel tanks and pump canopy. The opposed petrol service station will be located at Mwongori settlement scheme, plot No. 84, Cheplat Market, Cheplat-Keroka Highway. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5333 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of multi family housing, commercial and offices. The proposed project will entail development of the following: Phase 1
Phase 2
Phase 3
Phase 4
The proposed development will be situated on plot L.R. No. 11148/4 which has an approximate of 34.6 Ha. located about three kilometers from Thika Road turn off to Thika/Gatanga Road opposite Blue Post Hotel and ten kilometers from Thika town centre. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() SUPPLEMENT No 28 Legislative Supplement Legal Notice No 62-The Immigration Act – Exemption SUPPLEMENT No 29 Legal Notice No ![]() |
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Kenya Law Weekly Issue 106/2010
14 May 2010
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