How SM Otieno case helps courts resolve burial rows

Kenya does not have any legislation dealing with where and who should bury a dead person. Thus, the legal framework for disputes concerning burial rights is case law and precedent established by the Kenyan courts.

That said, any significant discussion on the legal framework for burial rights in Kenya starts from a look at the Court of Appeal ruling in Virginia Edith Wamboi Otieno versus Joash Ochieng Ougo & another, Civil Appeal No 31 of 1987 popularly known as the SM Otieno case.

In 1986, Mr Otieno, a prominent criminal lawyer, passed away triggering a legal tussle over who had the right to bury his body and where the body should be buried. The tussle pitted his widow against Otieno’s brother and the clan of the deceased. Various principles emerged from this case. High Court judge Frank Shields in the first instance opined that the widow, due to her close legal proximity to the deceased, had the right to bury Otieno and that customary law was inapplicable in deciding the place of burial.

But during the second round, High Court judge Samuel Bosire found that customary law was applicable and that the deceased should be buried in his rural home on his father’s land. Subsequently, the Court of Appeal upheld the finding of Justice Bosire that the deceased could not divest himself of his father’s tribal lineage more particularly that “...there is no way in which an African citizen of Kenya can divest himself of the association with the tribe of his father if those customs are patrilineal”.

This means that the burial custom of the deceased’s tribe should help determine the place of burial of the deceased.

The court further held the view that the right to bury the deceased lies with the personal representative of the deceased who would obviously be the widow who, under the rules of succession, is first in line to be the administrator of her deceased husband’s estate.

However, the Court of Appeal was very clear that the widow should carry out the customs with regard to the burial of the deceased in conjunction with those who are responsible under customary law. Therefore, the court determined that both the widow and the brother of the deceased had the right to bury the deceased.

The SM Otieno case is the precedent on the question of the applicability of customary law of the deceased in deciding the place of burial. It is now settled that where the issue of place of burial is to be decided by a court of law, the court relies on Customary Law to make a decision. This is especially so where the court is of the opinion that the customary law in question is not repugnant to justice and morality or inconsistent with any written law in Kenya.

Additionally, the right to bury the deceased lies with the representative of the deceased’s estate. This position has been clarified further by the High Court in the case of Ruth Wanjiru Njoroge vs Jemimah Njeri Njoroge & Another (2004) that the person with the duty to bury the deceased is the one with the closest legal proximity to the deceased. It was acknowledged that in a marriage, that would mean that the surviving spouse has the first right to bury the deceased. However, the Otieno case mandates the spouse to involve persons with the duty to do the burial under customary law.

Another interesting issue is the role played by the wishes of the deceased on how and where s/he preferred to be buried. This was an issue in the Otieno case with arguments made by the widow that the deceased had wished to be buried away from his rural home. In various cases involving burial in the Kenya, this same argument has featured. As far back as 1987, the courts have upheld a principle of common law that a dead body is not a property to be owned and therefore a person cannot dispose of his own body in a will.

Therefore, the wishes of the deceased on how his body should be disposed of are not binding on his estate. However, the courts have held that so far as practicable, the wishes of the dead should be respected so long as they are not contrary to custom, the general law or policy.

Another consideration that may have the effect of muddling the issue of custom is mixed marriages. However, as can be seen from the Otieno case the court took the position that in marriage, the wife under the Luo customary law, became part and parcel of her husband’s household as well as a member of her husband’s clan.

In a nutshell, if a burial row cannot be resolved by the deceased’s family, the court will apply the customary law applicable to the deceased. Where custom allows, the court may give effect to the wishes the deceased had expressed regarding where s/he wanted to be buried.

The writer is an advocate of the high court.