Nakuru man loses bid to bury wife he left for 30 years

NAIROBI: A man who was estranged from his wife for 30 years lost a legal battle against his eight children on the right to bury her.

Joseph Basweti wanted to bury his wife, who died in Njoro, Nakuru County, in his village in Kisii according to Gusii traditions but the court found that he did not have the right to do so.

Justice David Maraga, ruling in favour of Mary Kemunto's (the deceased) children, was categorical that their father could not claim to love his separated partner in death.

"It would be immoral to allow such an estranged husband to purport to love his wife in death. Under Kisii customary law, the widow or widower has a right to bury his or her deceased spouse. It follows that the respondent in this case has a right to bury the deceased. That right, is, however, not absolute. The deceased's views as to where and who should bury his or her body as well as other circumstances do in most cases override that right," Mr Maraga ruled.

In his 2010 decision, the judge noted that the deceased's wishes to be buried in the home she established overrode her husband's claim to customs that her body ought to be buried on his land.

Mr Basweti could not escape the judge's tongue lashing as he criticised him for failing to bother to look for his wife for 30 years.

Maraga noted that although he had paid his in-laws 15 cows and eight goats as dowry and married the deceased in the 1960s under customary law, his quest to bury her was to avoid condemnation by the community.

"For over 30 years, the deceased was separated from the respondent. For over 30 years, the respondent did not know where or how the deceased lived. He was not concerned with the deceased's sickness," he said.

"How, in the circumstances, can such a man be allowed to take the deceased's body to Kisii for burial against her wishes just because he wants to avoid condemnation by his community?"

The case was filed on May 3, 2010, and the court made its decision on appeal on July 22, meaning that the deceased was still in the morgue for close to three months. The judge ordered Basweti to foot the mortuary bill and directed that the woman be buried in Njoro.

The scramble for property, long-lost partners or unknown children who resurface to demand recognition, cultural and religious beliefs are among reasons why burial disputes arise. In other cases, it is about divorced parents fighting over who will bury a child.

GRIEVING FAMILIES

In one case, Justice Philomena Mwilu challenged Parliament to enact a law to make burial ceremonies uniform across the country to save grieving families the agony of mounting bills in mortuary and legal fees. 

The case pitted an 18-year-old against her mother on the right to bury her father.

"It now is urgent and opportune, in my humble view, that Parliament does consider it a matter of priority to legislate a law governing burials in this country, a law applicable to all the people of Kenya. This, once done, will bring uniformity in burials among the people of Kenya and ease the work of the courts. May that time come soon," Ms Mwilu said on July 28, 2010. Such legislation is yet to be enacted.

On April 2, 1987, Kenya's then Chief Justice Cecil Miller, faced with an application to appoint a bench of judges to hear the late SM Otieno's burial rights, said he sympathised with the courts that were dealing with rather abnormal contests.

"I must say in passing and as an aside that for my part, if burial as such be the true cause of the unending wrangle, and particularly through this Lenten Season, the matter might easily have been settled in the backroom or vestry of a church, and the body already properly and with deserved dignity laid to rest, instead of giving the incidental dirty impression of tribal dissension now apparently destined to run into March next year," Mr Miller said at the time.

"With so much else to do, I pity the courts. It appears that there is truth in the classical saying that when beggars die there are no comets seen," he added.

A majority of burial rights cases in court surround culture and land. Faced with the question of culture, courts have given divergent views.

Judges George Dulu and David Maraga in separate cases held that culture was not important to the last wishes and the relation to those who claim the right.

"Thus where somebody has willingly decided not to be bound by customs, he cannot be forced to be so bound," said Dulu.

But Mwilu ruled that culture couldn't be ignored entirely.

"Whilst appreciating the role Christianity has played in affecting customs to the extent that some customs have indeed been disregarded, some modified and others changed, Christianity has not totally eradicated customs and it is unlikely to do that any time soon, if ever. There are good customs and there is always a purpose for the practise of a custom," she said.

In the case before Mwilu, Salina Soote had moved to court complaining that her daughter had buried her husband, who died on January 29, 2010, without her knowledge or consent.

The deceased was a Keiyo man but his daughter, Caroline Cheptoo, a staunch Christian, saw no need to bury him according to Keiyo customs.

The judge found that it would be wrong not to bury him according to the Keiyo community customs that he believed in.