Landmark ruling: Court allows second wife to bury husband


The second family of the late Silas Kamuta Igweta at the Milimani law courts with lawyer Danstan Omari after the court allowed them to bury their father.

Photo credit: Richard Munguti| Nation Media Group

In a landmark ruling on burial disagreements, a court in Milimani, Nairobi has allowed a second wife to bury her 100-year-old husband of over 40 years.

Senior Principal Magistrate Gerald Gitonga departed from the norm of burying polygamous men in homesteads of the first wife by allowing Sarah Kathambi Igweta to inter Silas Kamuta Igweta, with whom she lived in Westlands, Nairobi until February 17, 2024, when he succumbed to old age.

He, however, suspended the burial order for 14 days to allow the first family to challenge the decision.

Mr Gitonga ruled that under the Burial Rights Act, a deceased should be buried by the person with whom he/she lived.

Kamuta's first wife, Grace Rigiri, 94, had opposed the burial of her husband by Kathambi, 78.

She claimed that Meru culture gives her the right to bury her husband. But Sarah disagreed, saying the deceased had quit his first marriage of 40 years thus she had the right to bury him.

Defence lawyers Danstan Omari, Shadrack Wambui and Nelson Githinji, for the second family (Sarah's), urged the court to depart from the norm because Kenyan law and the Constitution do not specify where a polygamous man should be buried when he dies.

In a ruling by Mr Gitonga, the court said a person should be laid to rest where he lived at the time of his death.

"I hereby order and direct that Sarah be allowed to bury the deceased husband in accordance with Christian and Meru rites," ruled Mr Gerald.

The two families were fighting on where to bury the late. The first is against the decision to entomb the man at the second family's house.

Rigir, had gone to court and obtained an order stopping the burial. According to her, she was married to the deceased and he should be buried at her home in Embu County.

But the second family says the late separated from the first wife over 40 years ago and, therefore, she has no right to say they lived together as husband and wife.

"For 40 years, the deceased's message was loud and clear that he had no business, no relationship with the first applicant, and had no intention of going back. Just like the Biblical term of 40 years when the Israelites were in the wilderness, the deceased cannot be taken back to where he left. He has reached his Canaan where he wants to be buried and that is why we want his wishes to be respected," Kathambi said.

In an affidavit, the second family has denied allegations that their mother forced their late father out of the first wife's house.

It said the divorce took place after his death and therefore the marriage certificate held by the wife was for life, adding that it does not serve the purpose of death.

“The implication of this is that a widow has no right to bury the deceased, only spouses have the right and because of the law as it is, the deceased is no longer chained in the chains of marriage, he has been set free and he has written a will to deal with himself after his death," read the court papers.

Through lawyer Omari, the second family claims that they spent over Sh5 million on the late's treatment and that the first family contributed nothing.

"My father left a will in which he indicated that he wanted to be buried at Lairang'i Mumui and so we agreed to have the will read the following day," reads an affidavit by one of the second wife's children.