Customs at play as court allows burial of man 16 months later

A court has allowed a family to bury their kin after 16 months of a protracted legal battle over his resting place.

In a case meant to determine his legitimate home, a Kisumu magistrate's court went through the Luo customs, making reference to some of the past precedents, before ruling that Alex Odhiambo's body should be buried at his ancestral home in Dago, Nyalenda B.

One of his widows was pushing to have the body buried at his second home in Ojola, Kisumu West.

The legal battle started in September 2015 when Odhiambo died. Odhiambo had built his first home in Dago where he put up three houses for his wives.

A misunderstanding however ensued among members of the family, forcing Odhiambo to establish another home in Ojola where his second wife Dina Adhiambo lives.

Odhiambo's third wife, Hellen Achieng, chose to stay at Dago, her husband's main home according to the Luo tradition, even after the death of the man's first wife, Margaret.

However when Odhiambo died, Dina moved to court to seek orders to be allowed to bury his body at her new home in Ojola, relying on a Will allegedly left by Odhiambo, whose clan vehemently opposed the application.

Odhiambo's remains have been at Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary for the last 16 months as Dina and Hellen battled for rights to bury him.

The court heard Odhiambo had established a home in his ancestral land at Dago where he built houses for his three wives, including Dina, who was the second wife, a fact agreed upon by both parties.

It was also established that the Ojola home was constructed later to accommodate Dina, who had moved from her husband's ancestral home.

In her case, Dina had asked the court to grant her the right to bury her husband's remains, and validate a Will he had allegedly written, which gave her the full rights to bury his remains.

Dina said her husband had wanted his remains to be buried at Ojola.

Great lawyer

The case brought back to light a similar one involving Wamboi Otieno and the family of former great lawyer SM Otieno over the burial rights of his remains over three decades ago.

On Wednesday, magistrate Martha Agutu noted in the said case, SM Otieno's clan was awarded the rights given that Luo customs provided that traditions be relied on when making decisions in such a case.

She noted that Odhiambo's main home was the one located at Dago, given that it had been established through the Luo customary law.

"Even if Luo traditions were observed in establishing the Ojola home, it does not negate the fact the deceased first established a home in Dago where he even built a house for his first wife. I do find that the plaintiff does not have sole claim in burying the deceased. This right is bestowed on the clan the deceased hails from taking into account the desires of the family of the deceased," said Agutu.

And on the validity of the Will, the magistrate poked holes into the contents of the document which she said was biased.

"The Will does not make adequate provisions for some beneficiaries hence ground for contesting, since evidence provided in court shows the deceased was polygamous," she said.

The SM Otieno case helped courts in resolving conflicts related to burials since Kenya does not have legislation dealing with where and who should bury a dead person.