The Court of Appeal has reversed an order for exhumation of the body of a man killed by Covid-19 four years ago for reburial by a woman claiming to be his legitimate wife.
The court overturned the ruling by High Court judge Abigail Mshilla on May 31, 2024, allowing exhumation of the remains of Michael Nding’uri Mwaniki for reburial by his ‘second wife’ Ann Wambui.
In the verdict issued by a three judge-bench comprising justices Patrick Kiage, Jamilla Mohamed and Weldon Korir, the court of appeal said Ms Wambui failed to prove her marriage to the man.
The court held that the burial of Mwaniki by his first wife Lucy Wanjiku was proper and that the High Court orders were erroneous and imprecise.
The judges sided with Ms Wanjiku and ruled that Ms Wambui, who claimed to have been married to Mwaniki for more than six years, did not even have the locus standi to make the application for exhumation. They dismissed her claim that she was legally married to Mwaniki under Kikuyu customary law.
“After re-evaluating the entire evidence and the disputed judgment, we find that Ms Wambui did not prove her marriage to Mwaniki on a balance of probabilities. We are not persuaded that the essential steps of a Kikuyu customary marriage were performed,” said the judges.
The court concurred with Ms Wanjiku’s advocate, Fred Ngatia, senior counsel that Ms Wambui was not within the persons listed in section 146(2) of the Public Health Act, which sets out the three persons who can be issued with a permit for exhumation.
These are the legal personal representative or next of kin of the person buried, or his duly authorized agent.
Mr Ngatia contested Ms Wambui’s claim that she fell within the purview of section 146(2) of the Public Health Act by virtue of being a second wife to Mwaniki. He said the fresh interment sought by Ms Wambui was intended to happen on the same land where Mwaniki was buried.
He argued that although Ms Wambui alleged that she had been married to Mwaniki under Kikuyu customary law, there was no evidence that any of the customs of a Kikuyu culture were performed, including payment of dowry, which the High Court judge had appreciated in her judgment.
The lawyer informed the court that Ms Wanjiku was the sole wife of Mwaniki, having been married to him under Kikuyu customary law in 1985 and that their union was blessed with seven children.
He added that the application for exhumation was commenced for a collateral purpose being an attempt to have Ms Wambui recognized as Mwaniki’s wife.
“The High Court judge having disregarded the dowry book for being deficient, and in the absence of any other satisfactory evidence, we find that Ms Wambui did not prove to the required standard that, dowry payment, which is a crucial element of the Kikuyu customary law marriage, was carried out,” said the judges while overturning the High Court decision.
Mwaniki died on March 27, 2021, at Kiambu Level Five Hospital, while undergoing treatment and the cause of death was found to be respiratory failure caused by pneumonia, which is one of the signs and symptoms of Covid-19.
He was buried at his home in Githunguri Minja village, Kiambu County, under the Covid-19 protocols issued by the government, including attendance by less than 50 people.
It was stated that prior to his death, he had separated with his first wife, Ms Wanjiku, due to hostility and that upon his demise the family agreed to have him buried on April 1.
When the family arrived at the hospital on March 29 to transfer the body to Mukoe Mortuary, which was near their home, there was a dispute between the two women regarding who the body was to be released to.
It was claimed that Ms Wanjiku and her children were hostile to MS Wambui and other family members and the parties eventually left the hospital without settling the issue.
The following day Ms Wanjiku and her children removed the body from the mortuary and proceeded for a burial at the home. Upon Ms Wambui confirming the same with the hospital, she made a report to the police and investigations commenced.
Together with two other family members named Peter Njogu and Ruel Ndonye they moved to court asserting that they did not know where Ms Wanjiku took the body.
They sought orders to have Ms Wanijku point out where she buried Mwaniki, so that the body could be exhumed and a post-mortem carried out to ascertain the cause of his death. They also wanted to give the deceased a befitting burial.
For her part, Ms Wambui said the fact that the records at the hospital showed that she was the one who had admitted Mwaniki to the health facility, was proof that Ms Wanjiku was not living with him at the time of his death.
She contended that in the circumstances, the body ought to have been released to her. To buttress the claim that she was his wife, she produced a letter from the village chief, indicating that she was a wife to Mwaniki.
She asserted that there was no evidence to show Mwaniki was buried on the said family land, and the pictures that were adduced in evidence showing him being buried, were not enough to prove the burial and at the alleged place.
