Burial disputes in Kenya: establishing a framework for their determination by the courts

Abstract

Death is inevitable, and no living being can escape it; therefore, it necessitates that every person must have a final resting place. This study concerns itself with the determination of a deceased person’s final resting place, more specifically, the disputes arising out of the determination of a deceased person’s final resting place. In Kenya, there is no law governing the determination of burial disputes, and the need for such a codified statute or an act of parliament to be legislated to that effect has been pronounced and emphasised upon by multiple authors and scholars. The need for burial legislation or a codified framework to be used in the determination of these disputes by the courts has been proven necessary through the inconsistent and differing decisions declared by the courts in matters of this nature. Therefore, the paper will analyse different cases determined by the courts in Kenya and common law countries, then using the reasoning of the courts in these matters and the recurring factors of consideration used by the courts in the pronouncement of their judgement and utilise them to propose a framework to be used to guide the courts in the future for the dispensation of justice effectively as well as to aid in the reduction of backlog of cases within the courts.