Kenya – 4 March 2022

On 3 March 2022, the Federation of Women Lawyers (FIDA) Kenya and The Initiative for Strategic Litigation in Africa (The ISLA) were admitted as joint amici in a case where the plaintiff contends that since the death of his wife, the defendants have barred him from burying the body of his wife as is required by law and Luo customs.

The urgent application commenced on 7 February 2022, when the plaintiff filed proceedings with Court, seeking a temporary order of injunction restraining the defendants from collecting his deceased wife’s body from the mortuary. The plaintiff, who relies on his customary marriage to the deceased, to claim the right to bury her, observes that the deceased had divorced from her former husband, for over a decade.

The defendants, also relying on Luo customary law, contend that the deceased was not divorced from her former husband as Is expected customarily, and that she should be buried at a place of his choice.

A Magistrates Court cannot interpret the Constitution but has to apply the Constitutional provisions when adjudicating disputes before it.  Having been admitted as co-amici, FIDA-Kenya and ISLA’s amicus curiae submissions will provide useful information before the court in the form of international and comparative law standards on the right to found a family and the development which has been developed to include the right to divorce.  “The right to end a marriage and the expectation of finality that the divorce process should bring is recognized under Kenyan laws. The existence of laws that deprive people of this right by making some marriages not incapable of being terminated speaks to the unfinished business of eradicating gender discrimination”. Anne Ireri, FIDA-Kenya Executive Director

The amici also seeks to provide information that will help the court to apply customary law in ways that are consistent with the constitution and the right to gender equality including the State’s obligation to repeal laws and practices that undermine women’s rights to equality. “The legislative failure to harmonize some gender discriminatory aspects of customary laws has its roots in the previous constitution that contained a claw-back clause that exempted personal laws from being tested against the equality provision of the constitution. This is an opportunity to apply the law in a way that recognizes women’s rights to equality” Sibongile Ndashe, ISLA’s Executive Director

Legal counsel in the matter have filed written submissions and the matter resumes for mention on 8 March 2022.

For further enquiries or more information, kindly contact:

Lesego N Nchunga


Janet Anyango