The second wife of a Meru man at the center of a burial dispute achieved a major victory on Friday after the Court of Appeal suspended his burial by the first wife, pending the hearing of her appeal.
Sarah Kathambi had appealed the High Court’s decision, which had allowed the first wife to bury him, arguing that her late husband, Silas Igweta, left the first wife over 40 years ago and never returned.
Kathambi had initially won at the lower court, where the magistrate ruled that he should be buried at her home, but this decision was overturned by the High Court.
Represented by lawyer Danstan Omari, Kathambi appealed the decision, contending that the burial should be stopped pending the hearing of her appeal.
The Court of Appeal granted her application, stating that if the order was not granted as sought and the appeal succeeded, it would 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 subject the family to unnecessary hardship and indignity,” the court ruled.
Justices Gatembu Kairu, Ngenye Macharia, and Lydia Achode further ruled that it was essential for the Court to determine the deceased’s final resting place upfront.
“The interment of the deceased’s remains is hereby stayed pending the hearing and determination of the main appeal,” the court ruled.
The judges opined that the grounds raised in Kathambi’s memorandum of appeal were not idle and deserved to be heard.
The court dismissed the argument by the first family that the body had already been moved from Nairobi in preparation for the final burial rites.
“We note that it is not in dispute that the deceased’s body was moved from Umash Funeral Home to a different funeral parlour; however, his remains are yet to be interred, and therefore, this application has not been overtaken by events,” the court ruled.
In their case, Omari argued that if the order were not granted, it would be rendered nugatory and would require an exhumation order, which would embarrass the deceased’s family.
He further stated that they would be perceived as the people who caused the exhumation of an old man loved and revered by the Ameru people.
“The African culture requires that the deceased should rest in peace and transition to the afterlife,” Omari submitted.
In response, the first wife’s family argued that Kathambi’s family had not demonstrated that they have an arguable appeal, nor that the appeal would be rendered nugatory if the stay order was not granted.
The first wife had moved the body from Umash Funeral Home to an undisclosed location in preparation for burial in Meru and had even placed a newspaper advertisement with burial dates, but all actions were halted pending the hearing of the appeal.
