A woman has lost a court battle to bury her son on land belonging to a man she claimed to have married under Luo customary law after a judge upheld a ruling that she had failed to prove the existence of the marriage.
The Environment and Land Court in Siaya dismissed Jackline Opiyo’s appeal against a decision barring her from burying her son on property registered in the name of her late alleged husband, Kepha Jangolo.
Ms Opiyo told the court that she began living with Mr Jangolo in Usenge, Siaya County, in 2003 and established a home on his land the following year.
She claimed that Mr Jangolo paid her bride price in early 2014 while battling cancer, before he died in November that year, leaving her and her children on the property.
However, her account of the alleged customary marriage was undermined by conflicting testimony about the bride price exchanged, the people who received it and when the couple established their home.
In one account, Ms Opiyo said the bride price comprised one cow, while in another she stated that Mr Jangolo had paid one cow and two goats.
She also gave conflicting accounts of whether her biological parents or members of her clan had received the bride wealth.
She did not produce photographs of the alleged ceremony, while Risper Achieng, whom she identified as a witness to the marriage, was not called to testify.
Justice Addraya Dena found that the inconsistencies concerned fundamental aspects of the alleged marriage rather than minor differences in recollection.
“What therefore defeats the Appellant’s case is not an isolated discrepancy. It is the accumulation of inconsistency on the very matters she was required to prove,” the judge ruled.
The judge noted that one of Ms Opiyo’s own witnesses had testified that, under Luo custom, marriage preceded the payment of bride wealth. Yet Ms Opiyo placed the payment in 2014, about a decade after she claimed to have started living with Mr Jangolo.
The court also considered testimony from four witnesses who supported the account that Ms Opiyo had been allowed onto the land as a caretaker in 2014, rather than as a wife.
Eunice Omollo Jangolo, the administrator of her late husband’s estate, had sued Ms Opiyo, accusing her of occupying the property, erecting structures and preparing to bury her son there without consent.
Ms Omollo told the court that her husband had allowed Ms Opiyo to stay on the land without a formal agreement after she threatened to take her own life.
The court found that the arrangement amounted to a licence, which was subsequently revoked during succession proceedings. Ms Opiyo’s continued occupation of the property therefore amounted to trespass.
Justice Dena clarified that Ms Opiyo had not lost her case simply because the alleged marriage had not been registered. Rather, she had failed to establish that a customary marriage existed in the first place.
“The finding of the trial court that no marriage subsisted between the parties is affirmed,” the judge said.
The court also rejected Ms Opiyo’s claim that Mr Jangolo was the father of her deceased son, relying on her testimony during the original trial.
“I was married when my son, now deceased, was young and not Kepha’s son. I had five children; I did not sire any child with Kephas,” she had told the court.
Justice Dena said the admission undermined her attempt to claim that any of her children had been fathered by the deceased.
“Having made that admission, the Appellant cannot now be heard to claim, on appeal, that any of her children were children of the deceased,” the judge said.
“Having failed to establish a marriage or paternity, the Appellant never had any right to bury her son on the suit land,” Justice Dena ruled.
Ms Opiyo had also sought an order compelling Ms Omollo to pay the mortuary expenses incurred while the burial dispute was before the courts.
The judge dismissed the claim, saying the expenses had arisen from Ms Opiyo’s decision to keep her son’s body in the mortuary while pursuing the appeal.
“The mortuary expenses she incurred resulted from her own decision to hold her son’s body in the mortuary while she pursued this appeal,” the judge said.
In a judgment delivered on October 26, 2026, the court dismissed the appeal and upheld the orders barring the burial, directing Ms Opiyo to vacate the land and requiring her to remove the structures she had erected there.
