Ruth Benedict, in the book Patterns of Culture (1934) said:

“The life history of the individual is first and foremost an accommodation to the patterns and standards traditionally handed in his community. From the moment of his birth the customs into which he is born shape his experience and behavior.”

  1. Customs are part and parcel of dispute resolution in Kenya. They are envisaged in the Constitution of Kenya 2010 in so far as they are rid of any constitutional inconsistency and repugnancy. It is difficult to separate the Kenyan people from the customs that bind and dictate their social relationships. A question arises whether in certain situations, custom may override statutory law.
  2. A will is defined in Section 3 of the Law of Succession Act, Cap 160 Laws of Kenya (Law of Succession Act) as a legal declaration by a person of his or her wishes or intentions regarding the disposition of their property after their death. Every adult of sound mind may dispose of all or any of his free property by will. The said disposition should be done via a valid will as per the Law of Succession Act.
  3. In the case of Ruth Anyolo vs. Agnetta Oiyela Muyeshi (2019) eKLR there was a tag between Luhya Customary Law and the deceased’s valid written will whose validity is propounded by the Law of Succession Act. The Appellant was the 2nd wife of the deceased who intended to have the burial wishes of the deceased set out in his will respected and as such bury the deceased. The Respondent was the 1st wife of the deceased who claimed that under customary law, she was entitled to bury the deceased citing Eugene Cotran’s Restatement of African Law Volume II as an authority.
  4. Omondi of the High Court in Eldoret discussed the issue of the deceased’s burial wishes in his written will in relation to property in the deceased’s body. The learned judge held that the deceased does not have personal property in his dead body to dispose of by his written will citing the case of Samuel Mungai Mucheru and 3 others vs. Anne Nyathira (2014) eKLR. Essentially, the deceased may dispose of all his free property via his will and should not include disposition of his remains.
  5. The learned judge also held that though the burial wishes of the deceased are not binding, they may be given effect so long as they are not contrary to custom or general law or policy. Since the burial wishes of the deceased were contrary to his custom, the learned judge dismissed the appeal and held that the deceased should be buried by the respondent according to Luhya Customary law.
  6. This case is an eye opener on the far-reaching roots of customs in our society. It highlights an instance where our customs may trump colonial inaugurated statutory law. This case thus puts emphasis of Article 11 of the Constitution of Kenya 2010 that recognizes culture as the foundation of Kenya and its people in so far as it is not repugnant or inconsistent with the constitution. Indeed, customs inform who we are as a people and dictate our dealings up to our demise.

If you have any query regarding the same, please do not hesitate to contact Caxstone Kigata or  Shalma Maina at caxstone@wamaeallen.com or shalma@wamaeallen.com. Note that this alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.

 

 

 

 

 

 

 

 

 

Senior Associate at Wamae & Allen

Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.

Advocate Trainee, 2020
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