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)  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 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  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  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.