The High Court has ignored a dead man’s wish to be buried by his youngest wife and ordered that his remains be interred by his first wife in accordance with Luo tradition.

In his Judgment delivered on July 15, Justice Daniel Ogembo said that the dead cannot dictate how they should be buried.

Justice Ogembo settled a burial dispute between Patricia Ajuma, and Arkipo Orwo, Kenneth Kaunda, Matilda Betha, and St Elizabeth Lwak Mortuary.

The late Sylvester Adhola, 89, had wished that he be buried by Betha who was his third wife.

Ajuma, who is the first wife wanted to bury the husband. She argued that although men spend more time with the youngest wives, it does not give them a guarantee to bury them.

Ajuma said Luo traditions bequeathed her a right to inter her husband's remains at her homestead as the first wife. She wanted Adhola's body to be buried at Nguka where he built her ‘ligala’ (house).

Justice Ogembo ruled in Ajuma’s favour after he found that Adhola had anchored his life on Luo traditions.

The Judge said the only way the deceased would join his ancestors was to follow the same customs. He directed that Ajuma should be the one to bury her husband's body.

The Judge found Adhola's will to be problematic as it was not witnessed by two people as required by the law.

According to the Judge, a person cannot dispose of his body by will.

“There cannot be property in a dead body and a person cannot dispose of his body by will in any case,” said Justice Ogembo.

Ajuma told the court that Adhola married four wives and had 14 children. Her lawyer Kenneth Amondi argued that the deceased could not have been in the right state of mind when he was writing the will as he was unwell for a long time.

Ajuma said that her husband had built a 10 by 10 house at Kajosiah where he lived with his youngest wife.

She argued that it was taboo for her to spend at the house.

However, Ajuma said that his grandson was taking care of him as the third wife had left in 1979 while the fourth one died.

She also claimed that Adhola filed for divorce against the second wife thus she was the only one remaining.

Wilson Akodo was the second witness before court. He said that according to Luo tradition, Adhola ought to be buried at his first wife’s home.

Akodo’s stand was reiterated by Michael Okungu who told the court that even if a woman separated with her husband, she still had a duty to bury him. He argued that the first wife had a right to bury the body even when there was no love between her and the deceased.

Adhola’s cousin, Tobias Ongar also testified in Ajuma’s favour. He said he was aware that the two were married.

On the other hand, Arkipo said that Ajuma divorced Adhola in 1978. He argued that the deceased signed a will on August 3, 2015, in his presence and expressed his wishes.

Arkipo told the court that Ajuma’s house was built by a church and the deceased never set foot there.

Kaunda, the deceased’s son, also testified against Ajuma. He said that she was never a part of his life and she visited him in hospital and once at Betha’s house.

Betha was the last witness. She told the court that Ajuma separated from Adhola in 1978. She said the two had divorced in court but did not produce evidence.

Betha said that she came to learn about a will from her youngest daughter.

Adhola’s grandson Alfred Ayiko said that he was taking care of the deceased and only came to know about Ajuma in 2023.

Justice Ogembo observed that Ajuma and Adhola married in 1955. However, he said there was no evidence to show that they followed up the divorce case to the end.

“The divorce between the deceased and the appellant was never concluded and in law, the two remained legally married as husband and wife. It is worth noting that the deceased personally bought the land in Nguka on which the appellant’s home is situated. He must have bought land fully aware that the appellant was still his wife. I accordingly find,” said Justice Ogembo.

He ordered that the burial permit be surrendered to Ajuma and that the police should supervise compliance with his orders.

Justice Ogembo was found dead in his house in Siaya on July 17.