The High Court of Uganda (Family Division) has passed a 30-page ruling in a case involving the late Hon. Justice Mary Stella Arach-Amoko ordering that the body of the late Supreme Court Justice be buried in Nebbi. The Applicants who included the late Justice’s children, Annette Yossa, Komakech Emmanuel, Amony Jackie, Picho Godfrey, and Christine Onyok filed an application against Ambassador Idule Amoko and Attorney General vide Miscellaneous Cause No. 41 of 2023.
The Applicants sought orders inter alia to restrain the 1st Respondent from receiving, transporting, and burying the body of the late Justice Arach-Amoko, who died on 17th June 2023 to Arra Parish, Pachara Sub-county, Adjumani, and to allow the Applicants to receive, transport, and bury the body of their mother at her family ancestral home/burial ground at Jukiya Hill Ward, Juba village, Nebbi District, per Ker Kwaro Kaal Jonam customs.
The main issue for the court’s determination was whether the late Hon.Lady Justice Stella Arach Amoko should be buried in Nebbi District or Adjumani District.
While deciding in favour of the Applicants that the deceased be buried in Nebbi, Hon.Judge Ketrah Kitariisibwa Katunguka, made the following observations, that:
a. There is no express law governing burial disputes, especially for persons who die intestate; but certain laws including the Constitution grant powers to the Court in situations like the one at hand. The position of the law, therefore, is that the Court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition.
b. While deciding that the late Justice expressed her wishes to the Applicants to be buried in Nebbi, the Court further stated that the deceased’s body is incapable of ownership by any person because it has no property value hence it does not fall within the ambits of a will.
c. The court relied on the Kenyan Court of Appeal decision in SAN vs. GW [2020] eKLR, to further observe that the law only recognizes the persons who are closest to the deceased to have the right to bury the deceased. Those persons have been identified as the spouse, children, parents and siblings, in that order. The other consideration is that the person claiming the right to bury the deceased must be one who is demonstrated to have been close to him or her during his or her lifetime.
d. In addition, while deciding whether the 1st Respondent’s custom should be observed, the Court defined the term custom as a practice that by its common adoption and long, unvarying habit has come to have the force of law. A valid custom must be of immemorial antiquity, certain and reasonable, obligatory, and not repugnant to Statute Law, though it may derogate from the common law.
In conclusion, the Court made orders that the late Hon. Justice Mary Stella Arach-Amoko shall be buried at Jukiya Hill Ward, Juba Village Nebbi District; the 1st Respondent is to attend the burial in Nebbi without any disturbances freely, and that no party should participate in acts that may further delay the burial of the late justice including but not limited to appeals or reactions to the ruling.
The Author Bright Natumanya is a Legal Writer and Partner at the Judicial Sound Exponent. For any inquiries, please email us.