A Kisumu court has denied a woman in a polygamous marriage the right to bury her husband in their shared home.
A Kisumu court has denied a woman in a polygamous marriage the right to bury her husband in their shared home, despite her having stayed with him for over 44 years.
The three-judge bench ruled that feelings of affection could not determine the resting place of a polygamous man. They said that even when the flames of love had died down, as long as there had been no divorce, the honours rested firmly with the first wife.
In this case, Ms Matilda Betha Adhola, who was Nelson Sylvester Adhola Kudha’s wife, her brothers-in-law, Mr Arkipo Orwa Kudha and her son Kenneth Kaunda filed an appeal against a ruling issued by the Siaya Magistrate’s Court. This ruling gave the right to bury the deceased to his first wife, Ms Patricia Ajuma Adhola.
The three appellants listed Ms Ajuma and St Elizabeth Lwak Mortuary, where the body has been lying, as the first and second respondents, respectively.
Adhola and Patrisia were married on November 19, 1955, under Luo customary law, which permits polygamy. The couple lived at the home of the deceased's father in Asembo Kayoo, Siaya County, and had 10 children.
According to Patrisia, they set up their own home on a land parcel in Nguka, Rarieda sub County, Siaya in 1985.
Adhola later married Matilda, his second wife, who bore him five children. He then married Phoebe Awuor as his third wife. They had four children together, but later separated, and she remarried. His fourth wife was Rebecca Oluoch, with whom he had six children, died.
On October 26, 2023, Adhola died while at the home of Matilda.
Patrisia, being the senior in the lineup, naturally expected to be the one with the final say on matters of burial; and in deference to Luo custom, she had no doubt that her husband would be buried at her homestead.
However, Matilda was totally opposed to this, contending that she was closest to the husband who had spent more years living with her in her home, and as fate would have it, dying in her homestead.
She had already moved Mzee Kudha’s body to St Elizabeth Lwak Mortuary, and together with her brother-in-law Arkipo and her son Kaunda, had made arrangements for the burial at her homestead; insisting that Patrisia had stopped living with the deceased in 1970; and eventually ceased being a wife in l979.
She claimed that the separation was due to divorce proceedings, which culminated in the issuance of a decree nisi. (An order by a court of law stating the date on which a marriage will end unless a good reason not to grant a divorce is produced).
But Patrisia complained that without any consultation or consent from her, her co-wife went ahead and took a burial permit and started organising the burial.
Her efforts to raise the issue in family meetings fell on deaf ears, prompting her to sue to have the remains of her husband preserved at the morgue pending hearing and determination of the matter.
Her other prayers were that her co-wife be stopped from burying the body of Adhola, which she wanted released to her for the burial at her matrimonial home, and that the burial permit be issued to her.
Justice Luka Kimaru.
But Matilda and the two appellants filed a counterclaim demanding that the body be given to them so that they can decide the burial date, location and site, which they described as Ongielo village. They also sought an order to have Patrisia meet the cost of preserving the body at the morgue.
The suit was heard in a Magistrate’s court in Madiany in Siaya, where Matilda also sought orders allowing her to hold in trust on behalf of the rightful beneficiaries, all the personal effects belonging to the deceased.
Patricia’s suit was dismissed and she later filed an appeal at the High Court on several grounds; and in allowing the appeal, the learned judge set aside the trial court's judgement and decree; directed that the deceased's body be released to the fist wife for burial at Kudha- Kajosiah which was held to be the deceased’s matrimonial home.
Matilda’s appeal to overturn the High Court ruling was dismissed by a three-judge bench in the Court of Appeal Kisumu comprising Justices Francis Tuiyott, Luka Kimaru and Hellen Omondi.
Justice Hellen Omondi.
Patrisia told the court that her co-wife tried to orchestrate a divorce between her and Mzee Kudha because she wanted to be the only wife, but the late Adhola refused.
Her husband would then give her a parcel of land that she resides in to date, that the deceased also bought her 43 iron sheets to construct her house and therefore considered herself the de facto first wife.
While the trial court found that marriage between Patrisia and the deceased was not legally dissolved as a decree absolute was never obtained, and that the two legally remained as husband and wife, the learned magistrate was of the view that not only had the pair expressed an intention to live apart, they had lived apart for over 50 years.
Witnesses who testified also stated that the deceased had never requested a dowry refund, which is what would have signified a complete customary dissolution of the marriage.
Patricia and Mzee Kudha would visit each other, attend family events, which included in 2015 during the traditional wedding of their daughter Florence Adhola.
The magistrate felt that Patrisia could not leverage on the children’s significantly close relationship with their father, to advance her claim that she too was close to the deceased, who lived with Matilda who took care of him when he was bedridden, thus demonstrating the key role she played; and rendering her the closest wife to the deceased.
But at the High Court, the judges observed that whereas not much affection was shared between Patrisia and Adhola, the whole family knew and accepted the fact that she remained the first wife and that her home was also the deceased’s home.
“From the evidence of the respondent’s witnesses, under Luo custom amorous tendencies alone would not be the yardstick to determine where a polygamous man is laid to rest; the favourite wife syndrome may dance itself lame during the lifetime of the source of such deep affection and the object of such affection, but in death, the light dims; and rank and file principle takes prominence,” read the judgement.
The court further stated that the years of separation between the two were interspersed with periodical interactions by both spouses; the deceased maintained some level of contact with Patrisia, beyond treating her as an estranged wife, or one for whom no relationship existed.
“He still participated in activities within her home, recognising her as the mother of his children, attending the traditional engagement ceremonies of his daughters and receiving dowry, buying land and building materials for her to set up a home, and no amount of judicial craft can change the fact that the deceased’s conduct was simply a reflection of an older man so besotted with his younger wife; and not a totally estranged spouse,” read the judgement.
The preceding evaluation and analysis of the evidence persuaded the judges that Adhola is to be buried in Nguka Village, in Nyilima, Rarieda sub–County where Patrisia’s home was established.
