Once the journey of life comes to its inevitable end, the task of laying one’s dearly departed to rest becomes an essential and sacred responsibility. The right to bury loved ones, grounded in a rich tapestry of cultural, religious, social and legal traditions, is a fundamental aspect of human dignity and compassion. It is a right that transcends borders, beliefs, and backgrounds, underscoring a shared value across humanity. In this article, we delve into the right to bury the deceased, exploring the legal dimensions through the precedent set by Courts in Kenya.

The Right to Bury

The right to bury is an inalienable right as human dignity demands as much – harking back to the great Greek playwright Sophocles’ play, Antigone, when in stark disobedience of Creon’s rules, Antigone insists on giving her brother, Polyneices, a decent burial, rather than have his corpse lie in the open, to be devoured by dogs and vultures. In Kenya, what has been the subject of numerous litigious proceedings is the priority given to the bearers of this inalienable right. At the heart of these type of proceedings has invariably been the spouses and kin of the deceased, each asserting their precedence over the other.

Most recently, the decision of the High Court at Nairobi (Ogola J) in Zipporah Masese Onderi v Joseph Ontweka & 3 Others (Civil Appeal No. E048 of 2023) reignited the controversy once more. Typically, the circumstances of the matter pitted the deceased’s widow, who was the Appellant, against the deceased’s brothers in a legal battle to determine the deceased’s final resting place.

In tipping the scales towards the widow, the Court held that the nuclear family of a deceased person has the priority right to bury their loved ones unless exceptional circumstances arise to render them undeserving of doing so.

Given that the likeness of the applicable customs, the Court’s decision in Zipporah Masese Onderi v Joseph Ontweka & 3 Others, was persuaded by an earlier decision rendered by the High Court in Nakuru (Maraga J – as he then was) in Oliver Bonareri Omoi & 5 Others v Joseph Baweti Orogo (2010) eKLR. The Court was once again forced to play umpire in a push-and-pull between the widower and children of the deceased and ultimately decided that the children had the priority right over the deceased’s estranged husband, who was the Respondent in the matter, to bury their late mother. In reaching its determination, the Court in Oliver Bonareri Omoi & 5 Others v Joseph Baweti Orogo was guided by the deceased’s final wishes and the nature of her relationship with her estranged husband, both of which extinguished his right as a widower to bury her.

Such has become the principle that has been pronounced by Kenyan Courts, thus putting to question the right of the kin to bury the deceased, who was also their loved one in equal measure. The precedent set by Kenyan Courts on this matter is that whereas the deceased’s

kin are indeed deserving of this right, it is however subject to an order of priority that was set out succinctly by the Court of Appeal in SAN v GW (2020) eKLR being: the spouse, children, parents and siblings of the deceased, in that order.

As demonstrated above it is pertinent to note, nonetheless, that the right to bury is not absolute. It may be extinguished by numerous factors among them being the deceased’s wishes which, though not legally binding, the Courts have refrained from overlooking, and a person’s conduct towards the deceased.

Generally, the Court has to consider all the circumstances of the case before rendering its decision on the right to bury. This was demonstrated in Samuel Onindo Wambi v COO & Another (2015) eKLR where the Court of Appeal found that although Luo customary law dictates that a wife should be buried in her husband’s home, the deceased was buried in Kakamega in line with her wishes given the ill treatment she had been subjected to by her husband’s family during and after the subsistence of their marriage.

Similarly, in SAN v GW while the Court of Appeal set out the order of priority with respect to the right to bury, it further clarified that this order of priority ought to be considered in light of the relationships maintained between the deceased and the persons claiming the right. In so doing, the Court held that while Luo customary law dictates that the first wife has the priority right to bury, the second wife’s right in this case superseded the first wife’s, given the strained relationship the first wife had with the deceased.

The Role of Customary Law

The loss of a loved one is an emotionally delicate matter that can easily lead to conflict among surviving family members. The catalyst in the ensuing conflict, at least as far as African societies are concerned, is usually the customs at play. More often than not, the surviving spouse tries to assert a position contrary to what the deceased’s customs provide for, leading to fierce opposition from the deceased’s kin.

Such was the case in the locus classicus case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another (1987) eKLR, concerning a burial dispute over renown lawyer S. M. Otieno, and is thus commonly referred to as the “S. M. Otieno case”. Here, the kin’s reverence for Luo customary law was met on the battlefield by the widow’s complete disdain for it. In making arguments that Luo customary law did not apply and that the deceased should not be buried in Nyalgunga, his ancestral home, his widow, Wamboi Otieno, stated that; their marriage was governed by the Marriage Act, (Cap. 150) Laws of Kenya and not customary law, that no dowry was paid by the deceased, and that in fact, none was demanded by her parents, and that since marrying her, the deceased had practised Christianity and the Luo customs and traditions were therefore irrelevant. It was her case that the deceased had expressed the wish to be buried either in Nairobi or Matasia and that only she, and her sons, had any say in how to dispose of the remains of the deceased.

After careful consideration of the facts brought before him, Bosire J (as he then was) ordered that the deceased be buried in his ancestral home. In his disposition, Justice Bosire found that Luo customary law applied and dictates that the deceased’s final place of rest is determined by his or her family members and that this custom does not exclude women from being involved in the decision making. Accordingly, both the widow and the deceased’s kin in this case had equal right to make that call. However, because they could not reach a consensus, the Court was guided by the deceased’s wishes which stipulated that he desired to be buried next to his father in his ancestral home.

The facts of the S. M. Otieno case are strikingly similar to those in Zipporah Masese Onderi v Joseph Onwteka & 3 Others, save for the fact that Kisii customary law applied to the latter and the deceased therein had not made clear pronouncements on where he wished to be buried. In further developing the principles underpinning the right to bury, the Court found that Kisii customary law and Article 45 of the Constitution mirror each other, in the sense that they are highly protective of the basic unit of the family, which is the nuclear family.

In the same breath, Kisii customary law demands that the widow/ widower of the deceased has the priority right to bury their spouse. Given that the deceased in this case had not made his burial wishes known clearly, the Court was guided not only by Kisii customary law but also the Constitution in reaching the determination that the deceased would be buried in his matrimonial home.

It may therefore be said that the role of customary law is akin to that of a tiebreaker where the loved ones of the deceased are at loggerheads, and there being no clear line of priority being drawn. In this regard, customary law plays a persuasive role, to be weighed against other equally applicable factors such as the deceased’s final wishes and the relationship of the kin to the deceased during the deceased’s lifetime.

The Takeaway

Ironically, an individual’s right to bury their loved ones is one that has to be balanced with the very same right borne by other loved ones of the very same deceased person. It is not an absolute right as it may be overridden by other factors such as the deceased’s final wishes.

As death is sometimes sudden and untimely, it is not always possible for pertinent discussions on final wishes to be held. In such instances, the Court will, where family members are torn, decide the final resting place of the deceased under the guidance of the customary law applicable to them.

At the end of the day, the loss of a loved one remains an intensely painful experience, affecting all who are touched by its melancholic embrace. Amidst the disputes and conflicting emotions that arise, it becomes clear that the ultimate goal should transcend the battles and strife. The paramount objective lies in ensuring that our dearly departed find solace in their final resting place. In the depths of grief, it is crucial to find common ground, and embrace compassion and empathy for one another.