If Borabu parliamentary aspirant Naftali Onderi Ontweka could be asked to choose between Kisii and Kamulu, perhaps his choice would have resolved the standoff between his widow and kin on his grave that has dragged on for two months now.
To date, Onderi's body lies at the Lee Funeral Home waiting for the day he will join his ancestors. His family cannot agree where to bury the politician who worked at the Treasury before getting into politics.
Although no one would want to leave the planet in a state of discord with his or her family, the dead tell no tales. Onderi’s opinion does not count now that he can neither be heard nor express his wishes.
His widow Zipporah Masese settled for his Kamulu home in Nairobi county as the place he would have preferred to rest.
On the other hand, his siblings - Joseph Ontweka, Elisha Ontweka, Stanley Ontweka, and David Ontweka - insisted that he must be buried according to Gusii customs.
They stated that as chairman of Mogunde clan, and owing to the design of his house that showed he was comfortable dwelling among his people, he must be with his ancestors at Kiango, Borabu constituency.
The five went ahead to prepare a grave for him, next to a house he had built. Onderi’s kin almost got away with it after the magistrate’s court ordered the morgue to release Onderi’s body to his brother David.
However upon appeal, High Court judge Eric Ogola tilted the scales of Justice in favour of the widow.
In the case, Onderi’s brothers argued that he married Masese under Gusii customary laws. They asserted that her late husband therefore ought to have been buried in accordance with his customs.
They argued that Onderi’s extended family barred his wife from participating in the burial as a widow; however, she ought to release him to be buried at his ancestral home, claiming this was his desire.
They claimed that he had built a house with two doors, indicating that in the event of death, the rite of being taken through one door and out of the house through the other would have to be done there.
His widow gave a different account. She said Onderi had stated that he would be buried at Kamulu.
While faulting the magistrate’s court, Masese argued as a spouse, her proposal on the burial place superseded that over any other person.
Further, Masese stated that her late husband spent most of his time with her in Kamulu.
She also said that the house built in Kisii was in a bad state while his Kamulu one, which was similar, also indicated that he wanted to be buried in Nairobi.
After listening to the rival arguments, Justice Ogola observed that although all those in the case deserved to bury the deceased, his body did not have any value to them.
“There is no property in a dead body,” he said adding that despite this, Africans honour the dead by doing what they wished when alive.
The magistrate court had initially found that a spouse’s right to bury a partner is not absolute. The lower court also ruled that there was an express directive by the deceased to be interred in Kisii.
However, Justice Ogola stated there was no proof Onderi wanted to be buried at his rural home.
“I, therefore, disagree with the trial magistrate on the decision that the deceased desired to be buried in Kiango. Both sides claim that he orally stated where his final resting place would be but they contradicted each other.
"It is highly unlikely that he would have been confused on his resting place; he seems to have been someone who knew that giving such contradictory statements would bring conflict to the family,” said Justice Ogola.
He relied on a judgment by former Chief Justice David Maraga to find that owing to Kisiis moving from their ancestral homes to new places, they are buried in the newly acquired homes.
“It is not new that the Kisii people have been buried in the places where they have established homes. It does not mean the customs or traditions do not apply if one is buried from Kisii or Nyamira,” the judge stated.
He observed that Onderi was a civil servant who had made his life in Nairobi and built a palatial home at Kamulu. This house, he said, was much bigger than the one at Kiango.
According to the judge, although both houses have two doors, Gusii customs required that a widow buries her husband.
Justice Ogola said: “The nuclear family is the basic unit of the family which is recognised and protected by the State. In this case, the appellant’s family is the basic unit and the nuclear family of the deceased has the right to bury their dead unless exceptional circumstances arise to render the nuclear family undeserving of burying their dead."