In burial disputes, law favours widows

By Pravin Bowry

Widows in Kenya have at last, it appears, won the legal right to bury their loved ones, to the exclusion of the deceased’s family or tribal clan.

A 25-year-old law set up by the infamous SM Otieno case arguably is no longer good law.

In a recent decision by the High Court sitting in Eldoret, the court steered clear of the Court of Appeal decision in Otieno versus Ougo & another.

In the Otieno case, the widow had sought an injunction restraining the deceased’s brother and the Umira Kager clan from burying the deceased at their ancestral home because the deceased had a permanent home in Ngong where he could be buried.

court injunction

The lower court had granted an injunction, but on appeal to the High Court and the Court of Appeal, the courts held that the wife had no duty to bury the deceased.

In the absence of customary law, the duty to bury the deceased could only lie with the personal representative of his estate.

The wife could not claim to be the personal representative as the grant for letters of administration had not been issued.

The court stated:

“There is no way an African citizen of Kenya can divest himself of the association with the tribe of his father if those customs are patrilineal. It is thus clear that Mr Otieno, having been born and bred a Luo, remained a member of the Luo tribe and subject to the customary law of the Luo people.”

empowered judges

In the new constitutional dispensation, it seems that the judges of the High Court of Kenya are more empowered in their decision-making and have deliberately chosen to disregard precedent in favour of decisions that mirror the spirit of the new Constitution.

One such sphere that is likely to be greatly affected by this new breed of decisions is family and gender law where the courts have persistently upheld customary law to the disadvantage of women especially in matters that involve burial disputes.

In the context of the new Constitution, this school of thought is now obsolete and cannot be upheld. Article 27(3) of the Constitution provides that:

“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

All this means that the courts must have regard to the right of the widow to bury the deceased to the exclusion of all others even relatives and tribesmen who from time immemorial have been the decision making authorities on where a husband is to be buried to the exclusion of the widow’s wishes.

With this in mind, Justice A Mshila in the case of Lucy Kemboi versus Cleti Kurgat & five others in a dispute between the wife of the deceased and his relatives over where he would be buried stated thus:

“Even though Keiyo customary law applies herein, the Plaintiff having been married to the deceased has a right derived from written law to bury the deceased.”

marital union

The Judge arrived at this decision having regard to an earlier case, Njoroge versus Njoroge and another, where Justice Ojwang found that the person who is the first in line of duty in relation to the burial of the deceased person is the closest to the deceased in legal terms, thus the marital union is the closest.

In Lucy Kemboi’s case, the court seems to be saying that a wife has the right under the law to bury the deceased husband in their established home.

The only reason why the court did not allow Lucy Kemboi to bury her deceased husband at their homestead was because it was not their permanent home and further the land upon which the house was built belonged to the deceased’s father who had died and no letters of administration had been issued in respect of the estate.

This in effect meant that to allow the deceased to be buried there could end up interfering with the rights of third parties upon distribution of the deceased husband’s father.

In the case of SM Otieno, the final decision was delivered by the Court of Appeal and under the principle of stare decisis that decision, unless overturned, is binding on the High Court and all other subordinate courts in the land. What is the legal effect of the recent decisions?  Has a lower court overturned the Court of Appeal?

revisiting issues

The Court of Appeal and the Supreme Court are likely to revisit the contentious issues, but the Attorney General must consider statutory intervention to the Succession Act to bring it in conformity with the Constitution.

Looking at how much uproar the SM Otieno case caused, the time and costs that are spent in the corridors of justice everyday as a result of burial disputes, it is hoped that our higher courts will settle the matter to the celebration of the widows. The writer is a lawyer.

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