Court stops politician's burial over site battle

The late Borabu parliamentary aspirant Naftali Onderi Ontweka.

Court of Appeal has suspended the burial of former Borabu constituency parliamentary aspirant Naftali Onderi Ontweka in a standoff between his widow and relatives over his final resting place.

Appellate Judges Hellen Omondi, John Mativo, and Mwaniki Gachoka unanimously agreed that Onderi should not be buried in Kamulu until the case filed by his four siblings is heard and determined.

The appeal was filed by Joseph Ontweka, Elisha Ontwenka, Stanley Ontweka, and David Okweka, against Onderi's widow Zipporah Masese after the Family Court allowed her to inter him at their residential home in Kamulu.

The High Court ruled in favour of Masese that Onderi should be allowed to rest at his Nairobi home instead of Bomachoge in Borabu where Onderi's ancestors were interred.

However, at the Court of Appeal, politician's siblings argued that it would be against their traditions for the former Treasury official to be buried in Kamulu.

In their ruling, Justices Omondi, Mativo, and Mwaniki stated that although the cost of preserving Onderi's body at Lee Funeral Home continues to skyrocket, it would be unfair to order for exhumation if they find that he should be buried at his ancestral land.

"While this option of exhuming the deceased's remains is available, in our considered view, it would be more prudent to await the outcome of the appeal rather than subject the family to the process of exhuming and reburying the body," the bench headed by Justice Omondi ruled.

It is the third month now and the bill for keeping him at the morgue stands at Sh391,000 while the cost of preserving the body is Sh4,000 every day.

Onderi's widow maintains the husband's wish was to be buried in Kamulu, the siblings on the other hand, insist their brother must be buried according to Gusii customs and traditions.

They asserted that, as a chairman of the 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.

The Ontwekas had gone ahead to prepare a grave for him, next to a house he had built.

Onderi's kin almost buried the fallen politician after the magistrate's court ordered the morgue to release the body.

However, upon appeal, High Court judge Eric Ogola tilted the scales of justice in favour of the deceased's widow.

In the case, Onderi's brothers argued that he married Masese under the Gusii customary laws. They asserted that her late husband therefore ought to have been buried in accordance with his customs and traditions.

It is their argument that Onderi's extended family did bar his wife from participating in the burial as a widow.

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.

The siblings told the court that their late father wished that all his children should be buried at the ancestral land.

Onderi's widow however gave a different account. She said the husband 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 of any other person.

Further, Masese stated that her late husband spent most of his time with her in Kamulu adding that the house built in Kisii was in bad state.

According to her, the dispute at the lower court was on where Onderi was to be buried and not who was to bury him.

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 any of them.

"There is no property in a dead body," he said adding that despite this, Africans honour the dead by following what they wished while 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 at Kisii.

However, Justice Ogola stated that there was no proof that 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 know that giving such contradictory statements would bring conflict to the family," said Justice Ogola.

The judge 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.

Justice Ogola traced Kisii's movement from Congo to Mt. Elgon in Uganda and their later settlement in Kisii and Nyamira counties.

"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 of 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."