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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

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