Introduction
The question of who has the right to bury a deceased person; the burial rites to be performed on a deceased; and the place of burial; have almost invariably come to the fore whenever an individual passes on. This is especially the case where a deceased happens to have been wealthy or prominent, or where a spouse of a deceased hails from a community other than of the deceased, reflecting the legally pluralistic nature of African and Kenyan societies. The disputes usually manifest in family members of a deceased rushing to obtain a burial permit, apply for a death certificate, receive a body from the morgue, seeking injunctive orders against another member from burying a deceased, among other issues. These contests arise partly because there is no statutory law on burial rights and perhaps from the misguided view that exercising any of the burial rights affords one rights to a deceased’s property.
In this legal alert, we assess the law on burial rights as determined by Kenyan courts.
On the 25th of January 2024, the Court of Appeal sitting in Nairobi in Ontweka & 3 others v Ondieki (Civil Appeal E692 of 2023) [2024] KECA 11 (KLR) delivered a landmark judgment holding that the widow of the deceased had the right to bury the deceased husband by virtue of having been the person closest to the deceased. The Court however held that the brothers to the deceased had a right to attend the burial and conduct burial rites according to the Gusii customary law which was the tribal custom of the deceased. This judicial decision aligns with other court decisions in Kenya which appear to affirm the centrality of a spouse/person closest to the deceased in burying a deceased; the important role of customary law of the tribe of the deceased in the burial rites and procedures and determining the place of burial, so long as such customs are not deemed as repugnant to justice and morality.
In the Ontweka case above, the deceased died on 19th April 2023 subsequently sparking a dispute between the deceased’s widow and the deceased’s brothers over the place of burial. Whereas the widow wished to have the deceased buried at the matrimonial home in Kamulu in Machakos County, the deceased’s brothers wanted the deceased buried in his rural farm in Kisii County arguing that the same conformed to Gusii customary practices.
The Court of Appeal made the following important findings that will guide resolution of burial disputes:
- The proximate legal relationship of the parties to the deceased are important in deciding who has the rights to bury a deceased
The person with the closest relationship to a deceased is given priority over to bury a deceased. The nuclear family (spouse and children) are legally considered as the closest persons to a deceased and therefore having the priority right (See also, Ruth Wanjiru Njoroge –Vs- Jemimah Njeri Njoroge & Another (2004) eKLR). Accordingly, if there arises a dispute between the nuclear family on the one hand and the extended family or the community on the other hand, the nuclear family’s interests will be prioritized in law. In particular, the Courts have held that a spouse to a deceased person has the right to bury a deceased ahead of any other claimant, followed by a deceased’s children, parents and then siblings, in that particular order.
The Court will also in some circumstances consider a person’s conduct towards a deceased during their life in determining whether a person may enjoy the burial right. It is in fact possible for a party, even a spouse or former spouse who would otherwise enjoy a burial right, to become disentitled to such right if it is shown that they had an estranged relationship with the deceased.
- Cultural and religious practices of the deceased may be important in determining the burial rites and place of burial
In the famous SM Otieno case (Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another (1987) eKLR), the Court hoisted the role of customs and customary law (Luo customs) in determining the burial rites and place of burial. In particular, the Court ordered the deceased’s body to be released on joint custody to both the deceased’s widow and brother and for the deceased to be buried in his rural home with the burial rites conducted in accordance with Luo customary law. In this case, the deceased’s spouse, who did not belong to the Luo community, had urged the Court to haver the deceased buried in their land in the outskirts of Nairobi.
In the case of Francis Malombe & 7 others vs Daniel Malombe & 9 others (2021) eKLR, the deceased had two wives and had set up two different homes for each of them. Although the deceased lived with his second wife and even upon the death of the second wife the deceased did not move back to the home of the first wife, the High Court held that the deceased’s body be released to both parties (first and second wife) but buried at the home of the first wife home, in accordance with the deceased’s custom/culture. For one to rely on this argument though, one must prove the cultural significance to the parties and its applicability.
A cultural or religious practice will be disregarded if it is found to be: a) Unconstitutional or repugnant to justice and morality; b) Irrelevant or inapplicable to the parties’ current way of life. As society evolves, so do the customs of people. The Courts have expressed the view that it would be unfair for members to be stonewalled into keeping practices that are no longer relevant to their current way of life.
- The wishes of the deceased person
While not binding, the wishes of the deceased must be, are usually given effect to by Courts, considering practicality of such wishes. These wishes however must be consistent with the Constitution and the customary and religious practices of the deceased. The Courts have held that the wishes of the deceased while important and will be given much weight even above customary law, unless there are compelling reasons not to do so (See, Samuel Onindo Wambi –Vs- COO & Another Kisumu Civil App. No. 13 of 2011 (2015) eKLR). The basis for disregarding a deceased’s wishes where the same is not practicable appears to be founded on the legal concept that a dead body is not property as to be owned by a deceased as to afford the latter the right or power to advise on its disposal.
