ROSA ADISA MAGALA v BONIFACE AMWAYI [2012] KEHC 141 (KLR)
- Court
- High Court of Kenya
- Case number
- 141
- Citation
- [2012] KEHC 141 (KLR)
- Decided
- 1 November 2012
The court finds that the defendant paid dowry to the plaintiff's family and that the deceased and the defendant were married, and orders that the defendant be given the deceased's body for burial at his ancestral home.
Facts
The plaintiff, Rosa Adisa Magala, seeks an injunction and an order directing the defendant, Boniface Amwayi, to bury the deceased, Everlyne Mwenesi Makala, on her land or at her ancestral home. The defendant claims the deceased was his first wife and that he should be given the body for burial at his ancestral home.
Issues
- Whether the defendant paid dowry to the plaintiff's family
- Whether the deceased and the defendant were married
Reasoning
The court concludes that the defendant paid dowry to the plaintiff's family and that the deceased and the defendant were married, based on the long cohabitation and the principle of presumption of marriage. The court also considers the defendant's priority in issues relating to his wife under the Law of Succession Act.
Outcome
The plaintiff's suit is dismissed, and the defendant is ordered to be given the deceased's body for burial.
Orders
- The body of the late Everlyne Mwenesi Makala be released to the defendant for burial at his ancestral home at Ebunasio in Ikolomani Division or any place of his choice.
Authorities cited
Cases cited (2)
- HOTTENSIAH WANJIRU YAWE VS PUBLIC TRUSTEE
- BETH NYAMBURA KIMANI vs. JOYCE NYAKINYWA KIMANI and others
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