A recent High Court decision has now 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.
In the case in question the High Court was asked to determine a dispute where a deceased Kenyan male should be buried. Although his ancestral home was in Gatanga, Murang’a 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 family insisted he be buried in Gatanga, citing custom and the fact that his ancestors and first wife were buried there.
The other side argued that Gilgil was his true home, where he spent most of his life and where his second wife was already buried.
In June of 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 examined whether the deceased had left clear burial instructions. The court found no conclusive burial wishes and therefore applied established legal principles used when wishes are unclear.
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.
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.
Evidence showed the deceased had lived in Gilgil for four decades, entered a Christian statutory marriage there, raised children, and deliberately distanced himself from his ancestral home due to family conflict.
Justice 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.
