Court blocks exhumation of Covid-19 victim after dispute between alleged wives
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 Court of Appeal has overturned a decision that ordered for exhumation of the body of a man who died of Covid-19 four years ago for reburial by a woman claiming to be his legitimate wife.
A ruling delivered by Justices Patrick Kiage, Jamilla Mohamed and Weldon Korir found that the appeal of Anne Wambui failed to prove her marriage to the man.
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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 appeal arose following a ruling by High Court judge Abigail Mshilla on May 31, 2024, that allowed the exhumation of the remains of Michael Nding'uri Mwaniki for reburial by his alleged second wife, Ann Wambui.
Marital status
The dispute stems from the right to bury Mwaniki based on the marital status of the two women.
The judges agreed with the claim of Wambui, who said she had been married to Mwaniki for more than six years, but dismissed her claim that she was legally married to him under Kikuyu customary law.
"After re-evaluating the entire evidence and the disputed judgment, we find that 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 also noted that 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.
Kikuyu customary law
The first wife, Lucy Wanjiku, had argued that although 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 court was informed that 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.
She added that the application for exhumation was commenced for a collateral purpose, being an attempt to have Wambui recognised as Mwaniki's wife.
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 fewer than 50 people.
It was stated that before his death, he had separated from his first wife, 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.
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