The Court of Appeal has directed the body of Silas Igweta to remain preserved at Umash Funeral Home in Nairobi pending the hearing and determination of a case filed by his second wife Sarah Kathambi.
Sarah Kathambi and her co-wife Grace Rigiri are fighting over who should bury the remains of their husband.
Igweta died in Nairobi on February 17 at the age of 100 years.
He was living with his second wife Kathambi when he died.
As Kathambi and her children Purity Kinya and Miriam Makena made burial arrangements, the first wife Rigiri and her son Mathew Kobia moved to court seeking orders to have the body released to them for burial.
The two women have their homes in Kianjai (Rigiri) and Lairangi Mumui (Kathambi) which are about 40km apart within Tigania West Constituency in Meru County.
Milimani family court chief magistrate G.M Gitonga had in April ruled that Igweta be buried at the home of his second wife saying the second family had established a close familial bond with the deceased.
The magistrate also found that it was Igweta’s will that he be buried in Lairangi Mumui.
But Rigiri moved to the High Court to challenge that decision.
She won after Justice Stephen Riechi in his judgment of May 21 directed that Igweta’s body be released to his first wife for burial at Kianjai in accordance with Ameru traditions and customs.
An aggrieved Kathambi then moved to the Court of Appeal seeking orders to stay the High Court judgment.
Kathambi and her children argued that the High Court judge erred by restricting the issues for determination to two and considering other issues which were not before the trial court.
She argues that she won the case at the magistrate’s court owing to the close familial bond the family had established with Igweta before his death and the fact that the man had abandoned his Kianjai farm for 40 years before his death.
She also argued that the judge ignored the fact that Igweta had wished he be buried in Lairangi Mumui and not in Kianjai, a home he had abandoned.
Court of Appeal judges Gatembu Kairu , Lydia Achode and Grace Ngenye-Macharia noted in the ruling dated July 26 that the case is a highly emotive burial dispute between two wives and their families who both claim the right to bury the deceased in their preferred piece of land
In her appeal, Kathambi said stay orders were necessary so that Igweta’s body will not have to be exhumed in case her appeal wins.
The judges agree with that reasoning, saying if the orders sought are not granted and the appeal succeeds, it will be rendered nugatory.
“Enforcement of the orders post-interment would entail exhumation and relocation of the remains of the deceased. This would not only be costly but would also subject the family to unnecessary hardship and indignity,” the judges ruled.
They concluded the appeal has merit and directed that the interment of the deceased be stayed pending the hearing and determination of the main appeal.
“We are of the view that the grounds raised in the memorandum of appeal are not idle and ought to be given a chance to be ventilated,” the judges said in their ruling.
