Woman wins court battle to bury husband in Kamulu

The courts have once again been called upon to decide where a man is to be buried.

And unlike in 1987, when Wambui Otieno was pitted against her husband's clan, Umira Kager, over the burial of Silvano Melea Otieno, popularly known as S.M. Otieno, this time the widow got her wish.

The body of Naftali Onderi Ontweka has been at Lee Funeral Home since April last year.

And after months of court battles, Onderi's remains will be buried at his Kamulu home after the Court of Appeal granted his widow - Zipporah Masese Ondieki - the right to bury the remains. 

Justices Mwaniki Gachoka, Francis Tuiyott and Lydia Achode said Ontweka's brothers - who wanted him buried in Kiango, Kisii County - were free to attend the burial and perform Gusii customary rites.

"Therefore, while the appellants (brothers) are understandably aggrieved and emotionally drained, the law is not on their side," said Judge Mwaniki Gachoka.

One of the grounds advanced by the brothers was that Onderi had built a two-door house in the rural area. According to the siblings, in the event of death, the body would be brought in through one door and out through the other.

This was contradicted by the husband and his eldest son, Boniface, who said that the house in Kamulu also had two doors. And unlike the house in Kamulu, the rural house was in a bad state and his father never repaired it because he never intended to live there.

The brothers further countered that Onderi was the head of the Mogunde family and had even been crowned a Gusii elder and given the blessing to contest the Bomachoge Borabu constituency in the 2022 general election.

The judge said: "The evidence shows that Onderi built a house in Kamulu, which was the matrimonial home, and another in Kisii.

Both houses, the judge said, were built with two doors. "Critically, the uncontradicted evidence of PW2 (one of the sons) revealed that the deceased's house in Kisii was in a bad state and as such he had no intention of living in the said house. Similarly, it was also established that the house in Kamulu was the matrimonial home of the deceased where his relatives used to visit for celebrations with the deceased before his death," the judge added.

Justice Gachoka said Joseph, Elisha, Stanley and David Ontweka, the brothers of Naftali, were free to attend the burial and perform Gusii customary rites if they so wished. The decision was upheld by judges Tuiyott and Achode.

The retired senior civil servant died on 19 April last year, but two factions of the family could not agree on where to bury him.

The dispute pitted the four brothers against the widow over whether he should be buried in Kiango, Bomachoge in Kisii County or Kamulu in Nairobi County, as urged by the wife.

The court was told that the man owned a five-acre plot of land in Kamulu. He also had a house in Kileleshwa.

After his death, the brothers obtained a burial permit and announced May 5 last year as the date for the funeral. However, the burial site was not specified. It later emerged that the brothers had obtained a burial permit to bury him in Kiango, Kisii County.

The judge ruled that Mr Onderi had never embraced Christianity and had never separated himself from his patrilineal Gusii traditions. This was evidenced by the fact that he married his wife according to Gusii customary law, named his children according to that law and accepted his role as head of the Mugunde family.

The judge said that Boniface had confirmed that his father had never expressed a wish as to where he wished to be buried. The court concluded that Onderi should be buried in Kiango, Kisii County.

In support of their case, the brothers argued that this was evident from the fact that he had built a house in Kiango in accordance with custom and tradition, had built a new house in Iyenga, was chairman of the Mugunde clan and had close contact with the people of Kisii.

The lower court said that since Onderi and his family followed Gusii customary law, he should be buried by his brothers according to those cultural rites.

The widow then went to a Nairobi court and obtained a temporary injunction to stop the burial. She argued that she had an automatic right to bury her husband.

She argued that the matrimonial home was the best place to bury her husband because she would take care of the grave.

In his ruling on 5 July last year, Justice Eric Ogolla accepted that the deceased could be buried in either Kamulu or Kiango as both houses were built with two accessible doors.

The judge allowed the widow to collect the body for burial in Kamulu. Justice Ogolla had also ruled that Kisii rites should be followed during the burial.

The brothers would have none of it when they approached the Court of Appeal, arguing that it was their brother's wish that his remains be buried in Kiago, Bomachoge Borabu Constituency, Kisii County.

"There is no evidence that the deceased's wish was to be buried in Kamulu. Therefore, it is in the public interest and in the interest of justice that the deceased be buried in accordance with the customs of the Gusii community and not in accordance with the wishes of his nuclear family, as was held by the High Court," the brothers argued.

In the appeal, the brothers argued that although the wife had the absolute right to the body, Mr Onderi was a prominent member of the Gusii community and it was his wish to be buried in Kiago, as evidenced by his actions in building a permanent house in accordance with Gusii custom.

The court also heard that the extended Mogunde family had made preparations for the burial site and would suffer considerable pain, loss and distress if the orders sought were not granted.

The wife opposed the application, arguing that the delay in burying her husband had caused her mental and emotional distress.

She argued that the body continued to accumulate costs in the mortuary. The daily mortuary fee for keeping the body is Sh4,000 and as at 12 June 2023, the mortuary fee was Sh391,000, she submitted.

The Court of Appeal judges agreed that burial disputes are not straightforward.

Justice Gachoka said society was dynamic and a mere statement that one belonged to this or that tribe was not enough, especially in a case like this where there were conflicting positions.

"Perhaps it is time to put the law on burial disputes to rest, but this is easier said than done because humanity is not homogeneous; each society has its own burial beliefs, rites and customs. As if these customs were not enough, religious beliefs and their interplay with customs and the question of which takes precedence over the other only add to the complexity of the disputes," said Justice Gachoka.

The judge said that in Christian theology it is said that Jesus of Nazareth predicted his death, but at no point did he prophesy that Joseph of Arimathea would bury his body on Golgotha. "Fortunately, there was no dispute over the burial," he said.

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