Thread by @milleniallawyer

I have seen reports in the newspapers about a frothing battle between Ken Okoth's relatives and Luo traditions and his preference for Cremation.
Now,I don't know much about Hon. Ken's wishes but I would like to educate us a little on disputes involving burial.

First,we have to thank the Luo Nation for its role in ensuring that we get very good jurisprudence on this very delicate area. Our story begins in 1986 in the famous case known by every law student, CIVIL APPEAL No. 31 of 1987 popularly known as SM Otieno Case

For a start,Kenya does not have any legislation dealing with where, who, how to bury a dead person. The laws only stop at the treatment of a dead body.

In 1986, Mr. Otieno who was a prominent lawyer practicing criminal law passed away and his death led to a big battle between his wife and his family, Virginia Wambui Otieno versus the Umira Kager Clan.

Wambui stated that he was her husband and had expressed his wishes to her and so she wanted him buried in their home in Upper Matasia.
Otieno's brother,Joash Ochieng Ougo, with the support of the clan demanded that he must be buried in Nyalgunga as per Luo customs.

At the High Court, Justice Frank Shields who was a wazungu, decided that since she was the wife and had close proximity, she had the right to bury her husband in her place of choosing and customary law was inapplicable in deciding the place of burial.

Blaine Harden in Africa:Dispatches from a Fragile Continent quotes SM Otieno as saying "To bury me in Nyalgunga, away from my children, is to throw me away".

The case pitted Dr. Khaminwa for Wambui and Richard Kwach(Later Justice Kwach) for Umira Kager.

During cross examination, Mr Ougo indicated that,the clan owns the body,irrepsective of the wishes of the dead. He said "wherever I go,my clansmen will spit on me and say I am bure.The spirit of the dead will follow the whole family of Jairo (their father)..if SM Otieno....

Is not buried at home in Nyalgunga.
Dr Khaminwa in examination asked him "Can you not explain to these ghosts and spirits that it is not your fault?"
Ougo:"No....you cannot catch these spirits and talk to them"

The Clan appealed to the High Court where Justice Bosire was the lone judge deciding the case.

Wambui on her part considered the Luo burial customs as being repugnant (extremely distasteful or unacceptable, abhorrent) to justice, to which Lawyer Kwacha retorted "My Lords, one swallow does not make a summee.Wambui is that swallow" to mean that a single instance of something

...is just that, it doesn't indicate a trend.
But SM Otieno never built a house in Nyalgunga as was expected of a luo man and he never allowed his children to sleep, eat or drink anything there. And that was the argument by Wambui,the man was a Luo by name only.

He had no desire to be tied down by customs and beliefs.
So the case was simply asking the question whether in death,one should be forced to comply with customs, even though he had denounced them while alive.
However, SM Otieno never wrote a will.

At the Court of Appeal, Umira jager clan won because they were able to show that while SM Otieno had "denounced" customs, he was still seen to have carried out certain luo customs including in naming children.

The court of Appeal held that "there is no way in which an african citizen of Kenya can divest himself of the association with the tribe of his father if those customs are patrilineal"

The court held that while the right to bury the deceased lies with the Personal Representative who is the widow, that burial must be carried out in accordance with the customs of the deceased. Therefore customary law was upheld.

The court has further clarified that the person with the duty to bury the deceased is his widow. However, SM Otieno case makes it mandatory for the widow to involve people with the duty to do the burial under customary law.

What if you have a will where you clearly indicate how you wish to be buried?
Enter Civil Appeal 126of 2018, brown brothers Morris Odawa vs Samuel Ochieng. Once again the Luo nation is lending jurisprudence in this matters.
In this particular case, Stellah Adawa had passed away.

Her son went to court to stop her step brother from burying her at Kibos and to instead have her buried at her husband's home as per luo customs. He failed in his first attempt and this appeal. It's good to note that she was separated from her husband. Her husband had no desire..

To bury her and it was therefore between the two sons who wanted to bury her in two different places.She had never gone to her husband's home in over 50 years yet Morris wanted her buried there. The court refused to grant that and held that she had no connection with that place

The Court quoted the Court of Appeal in Samuel Onindo Vs COO &Anor Kisumu CA 13/2011
"A deceased person's burial wishes are akin to a will. Save for a compelling reason, they supersede customary law and should be followed"

Finally, did you know that when courts decide who will bury, they consider the applicant's conduct to the deceased? Your conduct to the deceased can extinguish your right to burying the remains of the deceased.
Thank you for reading

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Many thanks to Kamau Mutunga of @dailynation and Sarah Omoit @StandardKenya for fantastic articles that I referred to for research.

And forgive the typos 😂😂😂😂

A lady by the name Anne Muthoni Thumbi has obtained orders stopping any plans to dispose of the body of Ken Okoth.