Judge gives direction on burial disputes

A High Court decision has sent a clear message in resolving burial disputes, as they remain one of the most painful and divisive conflicts in Kenyan families. In many cases, relatives clash over tradition, land, and control, often dragging matters to court, according to a report in the Kenyans. In the case in question the High Court was asked to make a ruling about a dispute where a deceased Kenyan male should be buried. Although his ancestral home was in Gatanga, Muranga County, he had lived in Gilgil for more than 40 years, where he built his home and raised a family. After his death in November 2024, one side of the man's family insisted he be buried in Gatanga, while the other side argued that Gilgil was his true home. In June 2025, a Magistrate’s Court ruled in favour of ancestry and ordered that the deceased be buried in Gatanga, Muranga. This decision prompted the Gilgil family to file an appeal to the High Court. Justice Helene Namisi found no conclusive burial wishes of the deceased. The High Court emphasised that when burial wishes are unclear or disputed, Kenyan courts apply what is known as the test of proximity to determine who had the closest and most meaningful connection to the deceased at the time of death.

Going beyond bloodline and ties, the court often considers physical proximity, which examines where the deceased actually lived, not where they were born or where their ancestors are buried. As such, the court examined the length of time the deceased lived in a particular place and whether they rented or owned the place, notes the Kenyans report. The court also considers emotional proximity to ascertain who shared daily life, care and emotional bonds with the deceased, as well as legal proximity, which refers to relationships recognised by law, like marriage, children and property ownership. Namisi ruled that while customary law is recognised, it cannot override constitutional values such as dignity, fairness and equality. Where custom conflicts with lived reality and human dignity, the law must prevail. The High Court overturned the magistrate’s ruling and ordered that Mburu Kinani be buried in Gilgil, next to the wife he lived with. Both sides of the family were allowed to participate in the burial to promote harmony.