Her man, their property and the other woman

Kenya’s judicial system is rife with cases where women battle over who should bury their shared husband.

Recently, a court in Milimani ruled that Sarah Igweta, a second wife, would be allowed to bury her 100-year-old husband of 40 years, Silas Igweta. Now 78, she had lived with him until his death, but a dispute arose between her and the first wife over who should bury him.

Chris Gachiri, an advocate of the High Court, says there is nothing legally trendsetting on the decision of the court in that ruling, other than changing from Kenya’s normal customary African traditions on burial rights where the first wife would have priority to bury the deceased husband.

“The man also had a will that provided how and where he preferred to be buried and had long separated from the first wife,” he says.

Another advocate of the high court, Elvis B. N. Abenga, agrees, saying that the court takes into account a lot of factors in such matters, such as were the deceased lived, whether they left a will, and the relationship they had with the person seeking to bury him.

In the late Silas’ case, he not only had a will indicating his wishes, but had also been separated from his first wife for 40 years.

“The court was just following the Burial Disputes Act, which says that a person is buried where they live,” says Abenga.

“Most times when it comes to issues of burial, customary law for a long time had been overruling statutory provisions, but the main difference here is that with the enactment of the Act, the first thing they now look at is the intentions of the deceased person, whether there is will stating where they would like to be buried. If not, you also then move on and look at where the deceased person lived for a prolonged period of time and so on.”

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Something similar happened in a case in 2020 where Silvanus Nyangwara Mwanja, who died in January that year, had homes in Kisumu and Bungoma.

The first wife lived in Kisumu, while the second lived in Bungoma. In that case, the courts also rules that the second wife had the right to bury him, because she had been living with him at the time of his death and he had also told friends and family that he wished to be buried in Bungoma.

These two instances are departures from the landmark case of the late Wambui Otieno and her late husband, Silviano Melea Otieno, commonly known as S.M. Otieno.

His brother challenged Wambui’s wish to have him buried on a farm that the late Otieno and Wambui co-owned, saying he had to be buried in his family home.

“The late S.M. Otieno had left his rural home, lived a western lifestyle and his late wife had sought to bury him somewhere other than his rural home. The court at that time ruled that you cannot run away from your customs, but currently, because of the burial rights act, that has changed a bit and the deceased has a say,” says Abenga.

But why do such disputes arise in the first place?

Abenga says it is because there is a misconception that whoever buries the deceased has a superior right to inherit over the others.

“People think that because the man was buried in their compound, they should be the one inheriting their wealth. There is no link between burial and inheritance at all. Inheritance is a different conversation from burial. According to the law, there is no property in a dead body. That is the first and major rule,” says Abenga.

In that case, who gets the property? Are second wives entitled to property? How about ‘baby mamas’?

This is where the Succession Act comes in, which provides for dependents under Section 29.

“Wives are considered as part of household in succession cases where there was a polygamous marriage,” says Gachiri.

Abenga also says that under that section, dependents include wives and former wives.

“We’re talking about a proper marriage, not a come-we-stay arrangement,” he says.

It is, however, a different case for ‘baby mamas’.

“If the deceased died without a will, ‘baby mamas’ do not have any claim, and they do not have any right to inherit under the law. Apart from that, the children of the deceased person automatically have a right to inherit,” says Abenga.

This is how ‘baby mamas’ stake their claim. Because their child can inherit property from their father, yet children cannot legally own property until they’re 18, they usually claim property on behalf of the children.

“They can claim it as trustees for the children, not on their own independent capacity. If a woman has no child with the deceased, they have absolutely no claim,” says Abenga.

There is, however, one last opportunity for such women – if the deceased named them in their will, alongside legal dependents.

“If the deceased had a will, the deceased also provided for other family members, and other dependents have already been adequately provided for, then in that situation the will shall take precedent and she will inherit through the will,” says Abenga.

His advice to ‘baby mamas’ who wish to inherit property after their lovers die is for them to ensure that the man has a will and that they are named in it.

“For second wives, it’s almost automatic. In terms of inheritance of property, they have a claim,” he says.

What about cases of divorce where the man has more than one wife?

The Matrimonial Property Act says that if spouses in a polygamous marriage divorce or the marriage is dissolved, matrimonial property acquired by the husband and his first wife are retained equally by both of them, states Harold Ayodo, an advocate of the High Court.

“However, matrimonial property acquired by the man after marrying another wife shall be legally regarded as owned by him and the wives – taking into account contributions made by the husband and each wife,” he writes.

He explains that where it is clear that there exists a written agreement of the spouses that a wife shall have her matrimonial property with the husband separate from that of other wives, she shall own that matrimonial property equally with the husband without the other wife or wives.

“You may also protect yourself by entering into a prenuptial agreement before getting married since the law in Kenya today allows polygamy. The pre-nups (prenuptial agreements) allows couples to enter into an agreement before their marriage to determine their property rights,” writes Ayodo.