INTRODUCTION

Disposal of dead bodies takes various forms. It includes burials, cremation and entombment. Burial is the act of burying a dead body. It takes the form of interring a person in the ground, and is probably the simplest and most common method of disposing of a body. It is generally accepted to be one of the earliest evident forms of religious practice. Today, most burials are presided over by a religious figure, and in many cultures they are conducted with great respect. In some cultures, exactly how one is buried may make all the difference.

Some reasons why people are buried:

1. Respect for the physical remains. If left lying on top of the ground, scavengers may eat the corpse, considered disrespectful to the deceased in many (but not all) cultures.
2. Burial can be seen as an attempt to bring closure to the deceased's family and friends.
3. Many cultures believe in an afterlife. Burial is sometimes believed to be a necessary step for an individual to reach the afterlife.
4. Many religions prescribe a particular way to live, which includes customs relating to disposal of the dead.
5. A decomposing body releases unpleasant gases related to decomposition. As such, burial is seen as a means of preventing smells from expanding into open air

Entombment is another form of disposing off a dead body. It is the act of placing human remains in a structurally enclosed space, or burial chamber. This differs from burial in that the body is not consigned directly to the earth, but rather is kept within a specially designed sealed chamber. There are many different forms of tombs, from mausoleums (specifically built for this purpose), to elaborate (and often decorative) family crypts, to a simple cave with a sealed entrance.

Cremation is also another form of disposing a dead body. It is the process of reducing dead bodies to basic chemical compounds in the form of gases and bone fragments. This is most often performed in a crematorium, though some cultures, such as India, do practice open-air cremation. Hindus cremate their dead, believing that the burning of a dead body signifies the release of the spirit and that the flames represent Brahma, the creator.

Mass burials are also another form of disposing off the body especially when expedience is an issue. It happens mostly in the case with a plague or a disaster. A mass grave is simply a singular location in which multiple human remains are interred.

Human burial practices are the manifestation of the human desire to demonstrate respect for the dead. Cultures vary in their mode of respect.

CHRISTIAN CULTURE

The disposing of dead bodies by Christians takes the form of burials. Christian culture often demands that the body be laid flat, with arms and legs extended and aligned east-west, with the head at the western end of the grave. This is to allow them to view the coming of Christ on Judgment day.

ISLAM CULTURE

In Islam, the head is pointed toward and the face turned to Mecca. Funerals in Islam (called Janazah in Arabic) follow fairly specific rites, though they are subject to regional interpretation and variation in custom. In all cases, however, sharia (Islamic religious law) calls for burial of the body, preceded by a simple ritual involving bathing and shrouding the body, followed by salah (prayer). Cremation of the body is forbidden. The deceased is then taken to the cemetery for burial (al-dafin). While all members of the community attend the funeral prayers, only the men of the community accompany the body to the gravesite. It is preferred for a Muslim to be buried where he or she died, and not be transported to another location or country (which may cause delays or require embalming the body). If available, a cemetery (or section of one) set aside for Muslims is preferred. The deceased is laid in the grave (without a coffin if permitted by local law) on his or her right side, facing Mecca. At the gravesite, it is discouraged for people to erect tombstones, elaborate markers, or put flowers or other momentos. Rather, one should humbly remember Allah and His mercy, and pray for the deceased.

It is not permissible for Muslims to delay the burial in order for the maximum number of relatives to see the deceased, as is common practice among other communities. Once death is evident, the body should be prepared and taken out of the house for prayer and burial as soon as possible. In this way, contact with the dead body is minimized, which keeps the grief and hurt of seeing the dead down to a minimum. Abu Hurayrah related that the Prophet said "Hasten the funeral rites." Sahih al-Bukhari vol. 2, p. 225,. dead should be buried in the same area where they died. Transporting the body to another area or another country is not permissible if it will unnecessarily delay the burial or cause financial or other hardship. Muslims are obliged to bury everyone who dies in areas under their jurisdiction. Muslims should not be buried beside non-Muslims, or non-Muslims beside Muslims; each should have their own separate graveyard.

The grave should be dug deep and wide, and be well prepared. It should be dug straight down (shaqq) with a burial chamber in the middle or with a niche (lahd) to create the burial chamber on the side. Burial chamber is created from the earth, and sealed with bricks of unbaked clay. Both methods were practiced in the time of the Prophet sallallahu 'alayhi wa sallam. However,

Two or more bodies may be buried in the same grave. This may be due to the large number of dead resulting from a natural calamity or plague, or dead may be from the same family. [Sahih al-Bukhari, vol. 2, p. 239, #427]. It is preferable that only men should be responsible for placing the dead body inside the grave, even if the dead person is a woman. This is due to the fact that it has been the custom among Muslims from the time of the Prophet sallallahu 'alayhi wa sallam until today. The process requires a certain amount of strength, and men are generally stronger than women. The blood relatives of the dead have more right to place the body in the grave, based on the general meaning of the following Qur'anic verse:

"Blood relatives have more right to one another in Allah's scripture." [Al-Qur'an 8:75]

The Husband is permitted to place his wife in the grave on condition that he did not have sexual relations with his wife the previous night. [Sahih al-Bukhari, vol. 2, p. 238, #426

HINDU CULTURE

Indian family members will pray around the body as soon as possible after death. People will try to avoid touching the corpse as it is considered polluting. The corpse is usually bathed and dressed in white, traditional Indian clothes. If a wife dies before her husband she is dressed in red bridal clothes. If a woman is a widow she will be dressed in white or pale colours.

JUSTIFICATION FOR A BURIAL LEGISLATION IN KENYA

INTRODUCTION

The issue of disposing a dead body has been a controversial subject in Kenya since the colonial era. Failure to have legislation on the same is what has contributed to most of the controversies. There is no provision as to who should have the responsibility of burying the deceased and even where the deceased should be buried.

Over and above the fact that many families have to deal with the agony of loosing loved ones, many suffer a double blow since they find themselves having to deal with painful emotional disputes regarding where to bury their loved ones. While some would like to bury their loved ones in a given manner or at one place, the others would not take that. This normally culminates in heated exchanges and uncalled for family fallouts. In order to avert such, many people have resorted to making wills that have provisions for disposal of their bodies. They specify where they wish to be buried when they die. Some people have even dug their own graves in preparation for their death. The big question however is whether there is property in a body that can be bequeathed to a person in a will.

There is currently no clear comprehensive legal provision in Kenya on the procedure for handling, disposition or settling of disputes relating to dead bodies or burial of persons. The only provision of the law that touches on issues of disposing of dead bodies is section 137 of the Penal Code which makes it an offence for any person to unlawfully hinder the burial of the dead body of a person or without lawful authority disinter (exhume), dissect or harm the dead body of any person or being under a duty to cause the dead body of any person to be buried, fail to perform that duty.

Over time the courts have decided in various cases that a person can include in his/her Will the precise method upon which their body can be disposed of, the place of burial and the manner of disposal. Such provisions or directions have no binding legal effect when one is alive. This by extension would mean that the maker of a will cannot dispose of his dead body. Such provisions amount to a mere request to executors to comply with the testator’s wishes. The courts have stated that the executor is not bound to give effect to those wishes if they are either unworkable or in conflict with the personal law of the deceased.

The Constitution embraces our Customs including the burial rites. In Kenya burial ceremonies are considered very important just like marriages and other social celebrations, thus the issue of where a person is buried has serious implications for families and their communities. It is such an emotive issue that parties have moved to court, delaying burials for months and even years not forgetting the financial burden placed on them.

The most common forms of disputes are usually around:

1. Inter-ethnic marriages which bring about cultural conflicts where the customs of the deceased and his or her relatives and family members on burial differ from those of the widow or widower as the case may be.
2. Where the deceased was polygamous, then an issue arises as to who among his families has the right to bury them, coupled up with cultural differences of the families. This is quite common in our society today.
3. Where the deceased person, prior to his death, expressed certain wishes on where to be buried but his relatives prefer a different location for any other reasons.
4. Religious conversion is also a factor that leads to such conflicts especially where the deceased person during his lifetime or prior to his death changed his religion for instance from being a Christian to a Muslim, this brings about the question of which religion should be followed in conducting the burial.

In determining if there is property in a body it is vital to address the question whether relatives have an interest in the remains of the deceased and if so what interests. Section 137 of the Penal Code implies that there is a duty to bury the dead and it is an offence for a person charged with that duty to fail or hinder the burial of that body. As a general practice however, the duty to bury is on the next of kin in the order of administration and if none is available then the legal representative.

In the light of this provision therefore, there is no ownership or property in a dead body that can be transferred to another in a will. The expressions in the will therefore remain just that, expressions. In case there is a dispute between the family members as to the disposal of a body, parties can apply to the court for determination on who should in those circumstances bury the deceased. In determining such issues, there are three main factors that the courts may consider in making their decision:

1. Religion, where the deceased changed his religion.
2. The will or wishes of the deceased person.
3. The customs of the deceased person.

Courts have been in the dark for a long time but now its time to provide the court with a clear guideline in terms of coming up with a legislation to govern burials in Kenya. Critical questions that ought to be answered under the proposed legislation include:

1. Who should have the right to bury the deceased?
2. Where should the deceased be buried?
3. Does a dead body have value?
4. When should the deceased be buried? (Time frame)
5. Do the wishes of the deceased on where he or she where to be buried be given effect to?

EXAMPLES OF DISPUTES ON DISPOSAL OF DEAD BODIES DUE TO LACK OF LEGISLATION

FIRST SCENARIO

Families fight over burial of Kenyans murdered in US

A battle erupted in the United States on November 2010 between two Kenyan families over the burial of their three relatives who were killed in a domestic brawl. The dispute was between Danvas Omare, a brother to Bilha Ogendi who was killed together with her two children Kinley Isaboke Ogendi, and Ivyn Bosibori Ogendi, and Evans Kebabe, a brother to Bilha’s husband, Justus Ogendi.

On the one hand, Omare wanted the State of Minnesota to hand over to him the bodies of the slain victims so that he can bury them in New Jersey, while on the other, Kebabe wanted the bodies shipped to Kenya for burial in their ancestral home in Kisii. Omare, who lived in New Jersey, did not see any need of sending the three bodies to Kenya.

However, Kebabe who lived with his brother and the slain victims in Minnesota argued that his family has the right to decide where the deceased should be buried and must be in accordance with the customary laws of Abagusii. Kebabe contended that according to the Kisii customary law, the deceased, who was duly married in accordance with Abagusii customs, should be buried at her matrimonial home in Nyaribari Chache, by her in-laws. He said that the payment of dowry in a marriage rules out the in-laws from taking the body of a sister irrespective of the circumstances of her death to bury her outside her matrimonial home when her father in-law and brothers in-law are alive. Kebabe accused his brother in-law, Omare, of taking advantage of the State Law of Minnesota to claim his legitimacy to have exclusive rights to receive and transport the bodies to New Jersey and bury them. Kebabe went to court to seek orders to stop the plan to bury the bodies in America, and especially in New Jersey, where he claims the brother in-law does not have the required permanent residence status that will enable him buy a burial ground for the victims.

His argument was that his brother in-law has made unilateral decisions to start burial arrangements without involving the other family members. He showed the court in Minnesota a letter from Kenyan authorities in their rural home in Kisii which indicated that the two families of the slain lady and her killer husband's had agreed to have the bodies sent to Kenya for burial. But Omare disagreed and accused the Kenyan authorities of coercing his parents to enter into that agreement.

Authorities in Minnesota sided with Omare because the law recognises the blood family of a deceased person as the legitimate next of kin and burden bearer. However, Kebabe contested the section of the law that is being used to block his family from claiming the remains of his sister in-law, nephew and niece contravenes that of the Abagusii customary law. He said that the Abagusii customary law is applicable in this case and therefore superseded the Minnesota law because the deceased must be buried in her matrimonial home as it is custom to the Abagusii people. "The people’s custom takes precedent in a case of cultural conflict.

"This is a case of cultural conflict where one part wants to take advantage of the cultural ignorance of the authorities in Minnesota to upstage the other family unfairly," said Kebabe, which he said should supersede the Minnesota law. He contended that the deceased did not leave a will declaring where they would be buried in order to legitimize the Minnesota law. Authorities in Minnesota asked the Kenyan government for interpretation of the customary law in order to enable it advise the warring parties.

SECOND SCENARIO

A Kenya Defence Force officer who died during the September 21, 2013 Westgate attack in Nairobi had to wait to be buried due to family wrangles. The widow, Ms Christine Murugi filed a suit against James Muchoka, a cousin to the deceased, claiming he and other relatives are interfering with her right to bury her late husband.

Ms Murugi, who is currently working as a nurse, said that during their courtship as well as the marriage, the deceased showed her his maternal family land in Embu as his rural home. She stated that her husband’s maternal grandmother had given him a portion of land in Embu where they cultivated cash crops

“Even during the holiday season and the deceased’s off duty period, we would spend time in the maternal grandmother’s home in Embu with his siblings,” Ms Murugi. She added that the deceased recognized Embu as his home so much so that even during the traditional family introduction ceremony where the bride’s family visits the groom’s home was done, the ceremony was held at his maternal grandmother’s home in Embu.

She stated that even though the parents in-law bought a parcel of land in Tharaka, her mother-in-law has leased it for cultivation to another party and that her mother-in-law only travels to Tharaka to check on the structures she had built before relocating to Embu.

Mr Muchoka however said that the late soldier hailed from Tharaka and had in the year 2013 just before his untimely death, fenced their home in Tunyai location, Tharaka district, with a chain link fence and had even started constructing a permanent gate. He said that the paternal family’s position is consistent with Tharaka Customary Law and burial rites to which the late governed by and subject to in his life time.“There is no logical and practical justification for the deceased to be buried at his maternal grandmother’s land’’ He said.

THE PRACTICE

In the social context prevailing in this country, the person who is the first in line of duty in relation to the burial of any deceased person is the one who is closest to the deceased in legal terms. Generally, the marital union will be found to be the focus of the closest chain of relationships touching on the deceased. Therefore, whoever can prove this fundamental proximity in law to the deceased has the right of burial, ahead of any other claimant. These sentiments were made by Justice Ojwang in Njoroge vs Njoroge & Another

JURISPRUDENCE BEFORE THE 2010 CONSTITUION

The S.M. Otieno case leaves behind a legal precedent that will be echoed many years to come in the burial disputes in Kenya. The more than two decades old case that has been subject of academic and social debates will for a long time act as a reference point and a case study on the evolution of jurisprudence regarding burial disputes in Kenya. It remains significant as it is the first high profile case in the history of legal burial disputes in Kenya and the first one that expressly curtailed the right of a widow to decide where her deceased husband should be buried. Since the conclusion of the case in the year 1987, jurisprudence regarding burial disputes in Kenya has continued to grow.

The case of Virginia Edith Wambui v. Joash Ochieng Ougo and Omolo Siranga (1982-88) 1 KAR (commonly referred to as the S.M. Otieno Case) involved a prominent Nairobi lawyer called S.M. Otieno who passed away in 1986 without leaving a will. Immediately upon his death, his widow Wambui Otieno embarked on making burial arrangements to inter her husband in Upper Matasia Ngong. However, the husband’s clan, Umira Kager wanted to bury his body in Nyalgunga Nyanza, which was his ancestral home in accordance with the Luo customs. The matter led to a dispute that ended up in the High Court. The widow prayed for a declaration that she was entitled to claim her husband’s body and bury it on their farm at Upper Matasia, Ngong near Nairobi. The court issued an injunction restraining the brother of the deceased and the Umira Kager clan elders from burying the deceased at the ancestral lands of the clan. The clan immediately appealed against the ruling and the Court of Appeal set aside the ruling and orders of the lower court. The case was then taken for a full trial at the High Court where a three-judge panel, this time presided over by Justice Bosire gave the body of the deceased jointly to both parties to be buried in Nyanza. The widow unsuccessfully appealed against this decision finally bringing to an end the legal tussle that had span for six months.

The Court in this case upheld the Luo customs and traditions stating that the wife had no duty to bury him and that in the absence of customary law, the duty could only lie with the personal representative of his estate. The court stated in part. “…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.”

A subsequent ruling in Pauline Ndete Kinyota Maingi v. Rael Kinyota Maingi (Civil Appeal No. 66 of 1984) dismissed provisions of a will and upheld the Kamba customary law; the deceased’s custom. The court ruled that: “…before wishes of an African citizen of Kenya who has made a will directing where his mortal remains should be interred could be given effect to, the executor of his will must prove that the African custom was repugnant to justice and morality or inconsistent with written law, otherwise, such wishes would not be given effect to.”

The position regarding wills as to burial sites was later to be developed in the case of Eunice Moraa Mabeche and Another v Grace Akinyi (High Court civil case No. 2777 of 1994). In this case, the court validated the wishes of the deceased and underlined the right of an individual to make a will. The dispute involved the widow to the deceased and some members who had agreed that the deceased be buried at a Muslim cemetery in conformity with Islamic rights. The deceased’s mother on the other hand insisted that he be buried in Kisii as a Christian and insisted that the deceased had never converted to Islam.

This case was similar to the Kaittany case delivered in the same year. In the Kaittany case (Sakina Sole Kaittany & Another v Mary Wamaitha) [1995] eKLR, the courts upheld the common law principle that there can be no property in a dead body, that a person cannot dispose of his body at will and that after the death, the custody and possession of the body belonged to the executors until it was buried.

In the absence of a will regarding preferred burial site, courts have upheld the traditional customs so long as these were not repugnant to justice and morality or to a written law. This was the case in Kandie and 2 others vs Cherogony [2002]2KLR , whereby the court seemingly applied the ruling in S.M Otieno case and upheld the Tugen customary law provision that a man had to be buried by his father and family members at his ancestral home. The court stated that there was no evidence that such custom was inconsistent with any written law.

This reasoning was later to be echoed in Salina Soote Rotich v Caroline Cheptoo & 2 Others (Civil Appeal No. 48 of 2010) whereby the court upheld Keiyo customary law that made it a taboo for a man to be buried at his in-laws.

Courts were later to determine that besides the customary laws and traditions, other circumstances surrounding the death and life of the deceased had to be considered like the relationships of the claimants to the deceased. In the year 1996, the Court of Appeal in the case of Edwin Otieno Ombajo v Martin Odera Okumu [1996] eKLR stated that the right to bury the body of a married woman under Luo customary law ordinarily rested with her husband but that the said right was not absolute. Such customary law right could be impugned by unbecoming conduct on the part of the person on whom it rested. The court in this case stated that the wording of section 3(2) of the Judicature Act gave flexibility to the administration of justice as courts were empowered and had discretion to weigh all circumstances of a case before coming to a decision. The section provided thus: “The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”

Similarly, in the case of Charles Onyango Oduke & another v Samuel Onindo Wambi [2010] eKLR the High Court accorded the wish of a deceased woman to be buried at a place of her choice. The court was guided by the earlier case of James Apeli and Enoka Olasi v. Prisca Buluka (Civil Appeal No. 12 of 1979) where the court had allowed the widow’s wishes to bury the body of the deceased in accordance with the deceased’s oral will. In his judgment, S Eric Law had stated in part:-
“...if the deceased has left directions as to the disposal of his body, though these are not legally binding on his personal representatives, effect should be given to his wishes as far as this is possible…The duty of disposing of the body falls primarily on the executor…”

Lady Justice Ali Aroni in this case observed that the conduct and attitude of the husband towards the deceased and their family to be such that they were undeserving to bury Veronica’s remains and they could thus not claim customary right. The court considered evidence that the defendants had throughout the deceased’s life mistreated and banished the deceased whereupon she had established a home in Kakamega and that on many occasions had made it known to her family and friends her wish to be interred in Kakamega.

As to whether a wife of a deceased person had the first right and duty to decide on his husband’s burial, courts seem to have diverged from the judicial reasoning in the S.M Otieno case. In Njoroge v Njoroge & Another (2004)1KLR, Justice Ojwang ruled that marital status was more relevant to burial and that ‘it was the marriage regime rather than the succession regime that should prevail in determining questions of burial.’ The court thus found that the applicant’s claim to the body of the deceased was not as ‘strong and authentic’ as the respondents’ claim.

JURISPRUDENCE AFTER THE 2010 CONSTITUION

CASE STUDY

Lucy Kemboi v Cleti Kurgat & 5 others (2012) eKLR
Lucy Kemboi brought a suit against her in-laws seeking authority to arrange for the collection, burial and interment of the body of her husband the late Ambrose Kipkoech Kurgat at their matrimonial home at Kamariny, Keiyo Marakwet County.

According to Lucy, the deceased was her husband and after he had passed on, her, In-laws held meetings and made funeral arrangements without involving neither her nor her children. The meetings were held at her late husband's step-mother's house and she was not afforded any hearing and was only given information as to what had been decided. Lucy submitted that she only got to know that her in-laws intended to bury the deceased next to the grave of his late father through a defence filed by her in-laws after she had filed a suit in the Chief Magistrates Court. She also said that her late husband had a homestead and that she had constructed a house thereat together with her late husband. She stated that the homestead and house were located on a parcel of land, which piece of land was demarcated and given to her late husband by the deceased's late father and that it was upon that portion of land that she wanted to inter her late husband's remains. Lucy further stated that whereas her in-laws wanted to inter the remains at a grave site set apart by her late father in-law as a family graveyard, the said site was approximately two hundred (200) metres from her homestead and therefore she should be allowed to bury her late husband at the right place where she had built a house and established a homestead.

The defendants (in-laws) on their part said that their late father had set apart, a portion of the land as a graveyard, arguing that the burial site was outside the "Boma" of their late father and that their late father's remains, their mother's, their sister's and grandmother had been interred on that piece of land. The defendants also submitted that the alleged house built by Lucy and their late brother, was built for purposes of hosting their daughter's wedding, otherwise the deceased had a rented room in a place called Chembulet and carried on a business of a bar.

 widow has right, just like that of her in-laws, to bury the remains of her husband, the High Court ruled. Justice Mshila held Article 27(3) and (4) of the Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground that a widow's right to bury the remains of her husband were provided for and protected by Article 27 (3) and (4) of the Constitution, in that a widow should not be discriminated upon by cultural practices.

It was the Court's view that though Keiyo customary law was applicable and that under the said customary law the clan together with the deceased brothers were responsible for the burial of the deceased, Lucy having been married to the deceased had a right derived from written law to bury the deceased.

The Court further was of the view that the rights of Lucy were provided for and protected by the Constitution, in that Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan to bury her husband's remains.

In answering the question as to where the deceased had established a home, the Court drew reference from the case of Apeli v Buluku C.A No. 12 of 1979 where it was held that "…a person wishing to be buried outside his father's homestead takes steps to have an acceptable and established home elsewhere…”. In view of that , the court observed that by conduct and by reference from the facts, neither the deceased nor Lucy had established a permanent home at Kamariny and that the fact that a temporary house had been built on the said portion of land did not confer ownership of the property upon the deceased. From the foregoing, Justice Mshila held that the deceased did not have a title to the portion of land at her alleged homestead as the estate was yet to be distributed nor had a Grant of Letters of Administration been taken out over their late father's estate. Thus by giving Lucy the body to inter at the alleged homestead would interfere with the other family members' rights to the property.

Ultimately, the Court ordered that the deceased's body be handed over to Lucy and her in-laws jointly or to any one of them for burial at the site set apart by the late father in-law and father respectively for burial.

PATRICK ODERA ALILA & Another v ROSE NYASEME & Another [2012] eklr

On February 2012, the plaintiffs Patrick Odera Alila, brother to the deceased and Nicholas Stephen Otieno Nyaseme, the eldest son of the deceased went to court seeking orders restraining by temporary injunction removing, transporting or in any manner so dealing with the body of Joel Nyaseme Alila (deceased) lying at Montezuma Funeral Home other than for burial at Bandani village Kisumu County and an order be issued that Nicholas Stephen Otieno Nyaseme be allowed to participate in any deliberations, decisions and consultations regarding the manner and place of the burial of said Joel Nyasame Alila deceased and that order be made for the burial of Joel Nyaseme Alila (deceased) be done at no other place other than Bandani village within Kisumu County. On the grounds that:-

1. The applicant is the eldest son of Joel Nyaseme Alila (deceased)
2. The respondents have failed and or refused to involve his eldest son in the funeral arrangements of his deceased father.
3. The eldest son of deceased has an inherent obligation under the Luo Customary Law and practices to be involved in his father’s rites.
4. The respondents are now attempting to inter the body at Karen within Nairobi against Luo Customary Law and practices.
5. The defendants are Rose Nyaseme widow of deceased and Moses Ouma a brother of the widow.

The plaintiffs stated that the deceased was the head of Alila family before his death. He was from a polygamous family of 4 wives and one husband. Deceased’s mother was the first wife of the father who is now deceased. All the deceased in that family had been buried in that family land. The family wishes that the deceased be buried in that village. The plaintiffs and defendants are all from Luo tribe and they practice Luo Customary law and practices. The deceased was born a Luo and he remained a member of Luo Community.

Nyaseme Alila ststed that it was his fathers wish to bury him prior to his death. This expressed wish was not written. The deceased was never actively involved in clan affairs. His clan is known as Kanywour which did not objected to the burying of deceased at Karen. The deceased sought elective seat for Gem Constituency in Siaya and regarded Gem as his ancestral home although he had established Karen home.

The court relied on the precedent in Njoroge –vs- Njoroge, where Justice Ojwang J stated:

“..In Social Context prevailing in this country the person who is first in line of duty in relation to the burial of any deceased person is the one who is closest to deceased in legal terms.”

The court also relied on Dr. Mbatha –vs- Dr. Mukita , where the court said

“..it is unlikely in the normal course of events he would have contemplated death and express wishes to where he wished to be buried. That is a matter to be proved in this case where there is no written instructions. “Customary laws are matters of fact and must await trial of action”.

The court said the Constitution grants any party aggrieved to approach the court for remedy and that there was no dispute that the applicants are son and brother of the deceased and that the balance of convenience favour them. The court granted the orders sought.

PETER ONGAGA ONYIEGO v MOKAYA MARONGA & another [2010] eKLR

The applicant claimed that he was the lawful husband to the deceased since 1984 – till her death on October 2010 and that he has the right to bury the deceased. He wished to have her buried at his ancestral home in accordance with Kisii customs and traditions.

The Respondents are the father and mother of the deceased. They claimed they were entitled to bury the deceased as the biological parents. They denied that the deceased was married to the applicant who they referred to as a boyfriend.

The Respondents stated that prior to her death the deceased had communicated her wish to be buried at her parent’s home in Njoro. That she made a dying declaration to fellow nurses at Coast General Hospital, Mombasa. She was a matron at the hospital when she died.

The court stated that it was important to determine the deceased declared wish to be buried at a particular place before she died. The wishes of the deceased in this regard is important under the Constitution as there is a possibility that an oral Will as to the place of burial could possibly override the application of customary law on the burial of the deceased.

The court said that in the circumstances it was important that the question of the oral Will or wish as to burial by the deceased be determined at the place where she resided/lived for the last 7 years, worked and acquired personal property. It would be convenient to her colleagues, the nurses at the hospital and the FIDA officials to testify with least inconvenience in costs.

On a balance of convenience, it is easier for the Applicant to bring his witnesses to Mombasa to prove the existence of Customary Marriage and whether this gives him the right to bury the deceased whether the deceased had wishes on where to be buried or not and held that the trial required expedition trial to be at Mombasa.

J M K & another v D M K [2013] eKLR

The deceased and the Respondent contracted a customary marriage and thereafter solemnized the same in church. The couple separated in 2002 and lived apart until 2009 when the deceased filed for divorce. The marriage was dissolved in 2011. Upon the death of the deceased the Respondent filed the case in the lower court. Intention was to bury the deceased claiming that she was his wife and that he had a right to bury her. On the other hand the Appellants, uncle and brother to the deceased claimed that the deceased had divorced the Respondent and that she wished to be buried at her land at Mutyangombe. E M and P K, deceased’s children also testified that their mother had wished to be buried at her land in Mutyangombe.

The appellants moved to court on appeal seeking to have the judgment and orders of the lower court be set aside and in its place the court to make orders that the deceased was formally divorced and therefore a free woman, the family of the deceased including the appellants and the children of the deceased to determine the deceased’s final resting place; the remains of the deceased be released to the appellants/her parents or children for burial.

The Respondent at the lower court had sought orders among others that the deceased was not validly married to the 1st defendant without refund of dowry in accordance with customary law and a permanent injunction restraining the defendants, their agents, servants or employees from collecting, burying, interring the deceased’s remains at the defendant’s home or any other place until compliance with Kamba customary law.

The lower found favour of the Respondent in the following terms:

“It is clear that the deceased and the plaintiff married under two systems. The customary marriage however preceded the Christian one and in this court’s view takes precedent especially in light of the latter subsequent customary marriage. The process/rites involved in renouncing a customary marriage are well spelt out and the same were never performed and in this court’s view the same remain valid and binding, a fact supported by evidence of the plaintiff”

The Appeal court stated that the deceased was married under one system of law, statutory law and that when it comes to burial disputes, it is personal law that comes into play. This is because there is no statute in Kenya that governs burials. It held that the deceased was legally divorced from the Respondent. In Njoroge v. Njoroge & Another [2004] 1 KLR the court held 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. Generally the marital union will be found to be the focus of the closest chain of relationship touching on the deceased…”

The court held that the marriage between the deceased and the Respondent had been dissolved so the issue of spouse does not come in. Without a spouse, the first person(s)in line of duty in relation to the burial of the deceased and the closest persons(s) is her children followed by her parents and brother in that the remains of the deceased were to be released to her three children to inter the same at deceased’s land at Mutyangombe in line with her wishes.

LEGISLATIONS

1. THE 2010 CONSTITUION

The new Constitution does not give any guidelines on burials but the preamble talks of “we the people ...... proud of our culture” shows the commitment to tribal culture. Under Article 11 (1) the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. The state shall promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The Constitution empowers Parliament to enact legislation on protecting culture.

Article 44 (1) states every person has the right to use the language and to participate in the cultural life of the persons choice
Article 45 4(b) empowers parliament to make laws that support family and Article 2(4) states “…any law, including customary law that is inconsistent with this Constitution is void to the extent of such inconsistency...”

Article 27 (3) is to the effect that Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground

Article 32. (1) is to the effect that every person has the right to freedom of conscience, religion, thought, belief and opinion. (4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.

BIRTHS AND DEATHS REGISTRATION ACT

It is an Act of parliament to provide for registration of births and deaths. Section 7 is to the effect that it shall be the duty of every registrar to keep a register of births and a register of deaths and to enter therein, respectively, the prescribed particulars of every birth and death notified to him. The registrar appointed to register births and deaths occurring outside Kenya shall keep a register of births occurring outside Kenya and a register of deaths occurring outside Kenya.

Under section 8, a registrar shall not register a birth or death after the expiration of six months from the date of such birth or death, except upon receiving the written authority of the Principal Registrar issued in accordance with the rules, and upon payment of the prescribed fee.

Section 16 provides that every person notifying a death shall, to the best of his knowledge and ability, give the prescribed particulars, which shall be entered forthwith by the registrar in the register, and the person notifying the death shall certify to the correctness of the entry by signing or, if he is illiterate, by fixing his mark to the register.

Section 17 is to the effect that Upon the death of any person the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same registration area as the deceased.

Section 21 provides that no person shall bury, cremate or otherwise dispose of the body of any deceased person the registration of whose death is compulsory, without.

This Act does not state who is responsible for deciding who should be responsible to have the last say in burial of a deceased.

THE JUDICATURE ACT

There is the Judicature Act Cap.8 laws of Kenya. Section 3(2) supports customary law and is to the effect that the Court of appeal and High Court shall be guided by African customary law in such cases in which one or more of the parties is subject to it so far as it is applicable and it is not repugnant to justice and morality or inconsistent with any written law and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.
The Act is thus silent on the issue of burials also.

THE SUCCESSION ACT

Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons.

Part II of the succession Act deals with testate succession. It occurs where a person, desirous of retaining absolute or limited control over his property after death, arranges to ensure that upon his death the property passes to a person or persons of his choice. These arrangements are made through a valid will. Will is defined under section 3(1) as the legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly made and executed in accordance with Act.

A will is chiefly concerned with disposing of property, but it can be used for other purposes and for incidental matters, such as giving directions as to the manner of disposal of the deceased’s body or that the deceased’s body or part of it be donated for medical or scientific purposes. Though a will can state that, there is no legal backing on it.

Section 34 is on intestate succession. It is to the effect that a person is deemed to die intestate in respect of all his free property of which he has not made a will that is capable of taking effect.

This also encompasses ambiguity when it comes to burial. The whole Act is also very silent on who should decide the burial of the deceased especially if he died intestate.

THE MARRIAGE ACT

It is an Act of Parliament to amend and consolidate the various laws relating to marriage and divorce. Section 3 (2) is to the effect that Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. This provision is still anchored in the constitution. Part IV is on marriages under customary marriages, which are potentially polygamous.

The Act is silent on who should bury the deceased incase he had several wives. This has been a very contentious issue incase the man dies as which wife should have the right to dispose the body of the deceased.

THE MATRIMONIAL PROPERTY ACT, 2013

Matrimonial property, means either the matrimonial home household goods and effects in the matrimonial home, any movable or immovable property jointly owned and acquired during the marriage or trust property, including property held in trust under customary law, does not form part of matrimonial property

Section 4 is to the effect that a married women has the same rights as a married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable. This brings out the idea of equality before the law.

The Act is silent on who has the right to dispose of the body of the deceased.

PENAL CODE

Section 137 touches specifically on burials. However, it does not say who should bear the responsibility of burying the deceased. It states that Whoever unlawfully hinders the burial of the dead body of any person, or without lawful authority in that behalf disinters, dissects or harms the dead body of any person, or, being under a duty to cause the dead body of any person to be buried, fails to perform that duty, is guilty of a misdemeanour.

COMPARATIVE STUDY

AUSTRALIA

Burial Rights

What court or person should decide who has the right to bury a body when there is a dispute?

Burial disputes are currently decided by the Supreme Court of Western Australia. Disputes about burial of Aboriginal people are often between a Perth-based party (usually a spouse) and a rural or remote-based party (usually the deceased’s family). For many Aboriginal people, being able to die and be buried in their traditional homelands is very important. Under Aboriginal customary law, the deceased person’s family usually has the right to bury the body of their relative. The family’s wishes about how and where the body will be buried will therefore come before the wishes of the deceased person’s spouse or de facto partner.

Burial rights and Australian law

Australian law says that the right to bury the deceased person lies with the person who has the highest entitlement to inherit any property the deceased person has left behind (or if the deceased person made a will, the executor of the will). In Western Australia, the person with the highest entitlement is the surviving spouse (or de facto partner) followed by the children of the deceased person, the deceased person’s parents, the deceased person’s brothers or sisters, then other specified family members.

Resolving conflict between Aboriginal customary law and Australian law

Because of the difference between customary law and Australian law, there are sometimes disputes about who has the right to bury an Aboriginal deceased person. Usually the conflict will be between the Aboriginal deceased person’s family (who wish to bury the person in their traditional Aboriginal homelands) and the deceased person’s non-Aboriginal spouse (who may wish to bury the person close to their home so that they and any children can visit the grave). There have also been cases where an Aboriginal family and an Aboriginal spouse have different views about where the deceased person should be buried. Sometimes there are two competing cultural or religious beliefs or two different sets of Aboriginal customary law that may be relevant and the family and spouse cannot come to a decision about whose beliefs should prevail.

For example, this might happen where an Aboriginal deceased person was from the Kimberley and their Aboriginal spouse was from the South West and their customary laws said different things about who had the right to bury a body. It could also happen where an Aboriginal deceased person no longer observed customary law and the spouse respected this decision, but the family still thought it was important. Courts currently do not place much emphasis on cultural beliefs or customary law when they are asked to decide who has the right to bury a deceased person. Judges have said that they find it difficult to decide between the claims of families and spouses where both parties have very strong and genuine cultural beliefs. Judges must make a quick decision in these cases because Aboriginal people generally want to bury their loved one at the earliest opportunity so that his or her spirit can be at rest. Judges are therefore under a lot of pressure to decide who should have the right to bury the deceased person.

SOUTH AFRICA

In South Africa, there is no legislation on who should have the responsibility of burying the deceased.

Conflicting claims regarding the rights to bury a deceased have all too often given rise to litigation in South Africa. There are a number of decisions in point. These are for the most part collated in Gabavana & another v Mbete & others [2000] 3 All SA 554 (THC). These decisions boil down to the finding that the heir of the deceased estate shall be the person who decides on the arrangements surrounding the burial of the body. Where a deceased leaves a will, but without explicit indication as to whom shall be responsible for the burial arrangements, it could well be the implicit intention of the testator that such arrangements be effected by those who inherit his earthly goods.

However, courts have developed a mode incase of a dispute of burial. The Right to bury a deceased is to be reconsidered in light of constitutional development, multiplicity of heirs, Wishes of deceased, wishes of widow and children, family relationships and fairness.

In TITI GLADYS MAHALA v NOLILI NKOMBOMBINI AND ANOTHER Case No: 10861/2005IN THE HIGH COURT OF SOUTH AFRICA (SOUTH EASTERN CAPE LOCAL DIVISION)

The application concerned the right to dispose of the body of the deceased. The applicant sought an order declaring that she is entitled to bury the body of the deceased. The application was opposed by the first respondent, the mother of the deceased. The applicant stated that she and the deceased were married to each other by way of customary union, which marriage relationship subsisted until the deceased’s death. Three children were born of this relationship. She stated that the deceased was very close to her children and saw them on a regular basis. She, further, stated that during his lifetime the deceased and his mother did not have a close relationship. She claimed, for these reasons, to have a clear right to arrange the funeral of the deceased and to decide where and when the body should be buried.

The court stated that where the deceased dies intestate, there can be little problem where there is a single heir. Problems however arise where there is a multiplicity of heirs. In such circumstances there should be no hard and fast rules. Each case is to be decided on its own particular circumstances. Common sense shall largely dictate the decision of the court. The court shall have regard to the family relationships of the deceased, as well as all other relevant circumstances. The court shall take account of the practical considerations. Having regard to all the circumstances, granted the application.

CONCLUSION

Who has the ultimate right over your body when you die? Will you be able to bury their remains the way you want? Can anyone take over and dictate the manner and place of burial?

Maybe the time has indeed come since, the Constitution now expressly provides for equality even in the marriage. This right stretches in a unique form and goes beyond life. After the death of the spouse, the surviving spouse has the first and untouchable right over the body of their spouse. This means that the surviving spouse has the right to decide where remains of the deceased will be interred.

The Constitution has also elevated the status of our customs to the constitutional level. Customs can now rank alongside the coded laws. However, the customs are yet to be codified and or reduced into writing. The customs will however only be accepted as the law only if the customs are not repugnant and or in conflict with the law.

The courts will now have to decide whether certain Customs are oppressive and or repugnant. A good entry is the question of the rights of the surviving spouse over the deceased spouse, widow inheritance and similar practices that have been around for centuries. In one of the recent cases, the court has quickly stepped in to crash customs that are repugnant. This was demonstrated in the case of Lucy Kemboi v Cleti Kurgat & 5 Others (2012) eKLR

The Court further was of the view that the rights of a spouse were provided for and protected by the Constitution, in that Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan did, to bury her husband’s remains. Our judges now are all out to interpret the law in a manner that promotes the National Values and Social justice.

Where the deceased left no burial directions, or where such directions are not legally or practically enforceable, it is suggested that the law should give primacy to the right of the surviving spouse to make decisions relating to burial. The law should select the surviving spouse and the deceased's next of kin as the most favoured person to determine the time, place and manner of burial who qualify and rank them in the following order: surviving husband or wife children; parents; siblings; grandparents; and uncles and aunts.

Problems might, however might arise where the deceased died testate but the executor's arrangements for burial conflict with those of the surviving spouse. Under such circumstances, the wishes of the executor as to burial should prevail over those of the surviving spouse.

Though the law regarding burial disputes has evolved from the S.M. Otieno case in the 80’s, more still needs to be done to consolidate the legal position and clearly depict the place of customary law in such cases. Perhaps it is high time that Kenya legislated on the area of burial, which has become a growing field of modern day litigation just like in succession matters. This could perhaps solve most of these disputes at the earliest of stages.

By Jacob Mwendwa Malelu – Researcher KLRC