- There are laws governing marriage, divorce, and succession cases in Kenya.
- But there is one area that remains untouched by legislators- there is no law on burial matters- yet it remains very controversial with some families keeping the dead in mortuaries for ages, as they wrangle over who has the right to bury the dead relative.
- The fight is even more intense where there is more than one wife and worse still when one of the wives comes from a different tribe of the dead husband.
There are laws governing marriage, divorce, and succession cases in Kenya.
But there is one area that remains untouched by legislators- there is no law on burial matters- yet it remains very controversial with some families keeping the dead in mortuaries for ages, as they wrangle over who has the right to bury the dead relative.
The fight is even more intense where there is more than one wife and worse still when one of the wives comes from a different tribe of the dead husband. That is when in-laws descend on the hapless wife and dictate where and who to bury ‘their son.’
Judges have, however, found a way of navigating the myriad burial disputes. In such cases, courts put into consideration several factors on who has the final say on the internment of the dead.
What is clear though is that the African customs have been certain supremacy in deciding burial disputes. In their application, judges and magistrates use both common and customary law. The courts use customary law, common law, marriage law, succession law, human rights law, land law, and other bodies of personal law in resolving such disputes.
The wishes of the dead, and although not binding, is always given a priority, so long as the wish is not contrary to custom or the general law or policy.
“The wishes or a will on how the deceased’s remains will be disposed of upon death are not, as a general rule binding because, in the first place, there is no property in a dead body and secondly, because a dead person cannot take part in the decision of his or her burial. There must, however, be compelling reasons for not heeding the expressed wishes of the deceased,” the court of Appeal observed in a recent ruling.
In the dispute, Syprose Awino was fighting her co-wife Gladys Were over the burial of Silvanus Nyangwara who died in February 2019.
When he died in hospital in Bungoma, Syprose, who had separated from the elderly man for 26 years showed up and insisted that being the first wife, she had the right to bury him as per the Luo customs.
But Gladys disputed saying Mr Nyangwara, who moved from his Nyalenda home in Kisumu to Kanduyi in Bungoma County in the 1990s, had indicated his wishes to be buried in Luhyaland, under a mango tree.
The dispute soon headed to court and after hearing the case, a Kisumu court dismissed Syprose’s case. The magistrate allowed Gladys to bury the husband in his matrimonial home in Kanduyi as per his wishes.
Not satisfied, Syprose filed an appeal but the case was dismissed last year by High Court Judge Fred Ochieng’.
In his ruling, Justice Ochieng’ said, “I also hold that the deceased gave clear and precise instructions concerning his burial place: he was to be buried a few metres from the mango tree, at his home in Bungoma.”
The first wife was still not satisfied and pursued a second appeal arguing that Luo customs dictated that the husband must be buried at the home of the first wife.
She argued that the Nyalenda home, unlike the Bungoma home, was established by Luo custom. Gladys on the other hand maintained that the co-wife had not lived with the husband for over 26 years and when he was ailing, he expressly pin-pointed the specific spot where he wished to be rested.
She said her mother-in-law and his clansmen as well as his children were all in agreement that he should be buried in Bungoma. The court heard that according to Luo customs, there was no specific requirement that a polygamous man must be buried outside the home of his first wife.
“There being no controversy on the law to be applied, and bearing in mind, without straying into factual matters, we are satisfied that both courts below properly directed themselves on the law; that there are exceptions to the custom that the deceased ought to be buried at the first wife’s home; and that this dispute presented such an exception,” Justices William Ouko, Gatembu Kairu and Agnes Murgor ruled in dismissing Syprose’s appeal.
The judges added that it was highly unlikely that, after 26 years of absence from his Nyalenda home, Nyangwara would suddenly develop a love for the family there and wish in his final days to go back but only for burial.
“Apart from the aforesaid 26 years of separation, the appellant played no role in the deceased’s life when he was bedridden, not even a visit to the deceased during the two years when he was beset by illness,” the Judges said.
The court said the first wife did not show any closeness towards the husband after their separation and she did not show any sympathy towards him when he was ailing.
In deciding such burial disputes, the judges stated that the law only recognises the persons who are closest to the deceased to have the right to bury the deceased. They include the spouse, children, parents and siblings, in that order.
The court noted that since customary law exists in almost all ethnic groups in Kenya with a homogeneous value system and the customs varying from one ethnic group to another, resolution of burial disputes will depend largely on the peculiar circumstances of each case.
“Difficulties are bound to arise where, like this one, the deceased and the parties claiming the right to bury are governed by different customs, with the question being, which custom should be preferred,” the noted.