A widow has won a court battle to bury her late husband at their Kamulu home, Nairobi.
Unlike what happened in 1987 in a case pitting Wambui Otieno 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, a former Bomachoge aspirant has been lying at Lee Funeral Home since April 2023.
And after months of court battles, the remains of Onderi will be buried at his Kamulu home after the Court of Appeal granted the 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 to be buried in Kiango, Kisii County were at liberty to attend burial and perform the Gusii customary rites.
“Whereas the appellants (brothers) may understandably be aggrieved and emotionally drained, the law is not on their side,” Justice Mwaniki Gachoka ruled.
The brothers had argued that Onderi had built a house back in the rural home with two doors.
According to the siblings, in the event of death, the body would be taken into the house using one door and exit through the other one.
This was however countered by the widow and her first son Boniface, who said the Kamulu home similarly had two doors.
And unlike the home in Kamulu, the rural home was in bad condition and his father never repaired it because he never had intentions of living there.
The brothers further countered the argument further submitting that Onderi was the chairman of the Mogunde family and was even crowned as a Gusii elder, and given blessings to contest for Bomachoge Borabu Constituency in the 2022 general election.
The judges said from the evidence, Onderi built a home in Kamulu which was the matrimonial home and another in Kisii.
Both houses were constructed with two doors, they added.
“Critically, the uncontroverted evidence of PW2 (one of the son’s) disclosed that the deceased’s house in Kisii was in a bad state and as such had no intention of living in the said house. Similarly, it was also established that the house in Kamulu was the deceased’s matrimonial home where his relatives visited for celebratory events with the deceased before his death,” the judge added.
Justice Gachoka said Joseph, Elisha, Stanley and David Ontweka, the brothers of the Naftali, were at liberty to attend burial and perform the Gusii customary rites, if they wished.
The decision was endorsed by Justices Tuiyott and Achode.
The retired senior civil servant died on April 19, 2023 but two factions of the family could not agree on his burial place.
The fight pitted the four brothers against the widow on whether to bury him in Kiango, Bomachoge in Kisii county or Kamulu in Machakos County, as pushed by the wife.
The court was informed that the man has a five-acre plot in Kamulu.
He also had a home in Kileleshwa.
Following his death, the brothers obtained a burial permit and announced May 5, 2023 as the interment date.
The burial place was, however, not stated. It later emerged that the brothers obtained a burial permit intending to lay him to rest in Kiango, Kisii County.
The magistrate in a ruling ruled that Onderi never professed Christian faith and that he never divorced himself from his patrilineal Gusii traditions.
This was evidenced by marrying his wife under Gusii customary law, naming his children in that law and accepting his role as chairman of the Mugunde family.
The trial magistrate stated that Boniface confirmed that his father never expressed any wishes as to where he wanted to be buried.
The court concluded that Onderi ought to be buried in Kiango, Kisii County.
To support their case, the brothers argued that it was evident by building a home in Kiango in accordance with custom and tradition, constructing a new home in Iyenga, being a chairman of the Mugunde clan, and being in close contact with the people of Kisii.
The lower court said that since Onderi and his family subscribed to Gusii customary law, he ought to be buried based on those cultural rites by his brothers.
The widow then moved to a Nairobi court and appealed temporarily obtaining orders stopping the burial.
She argued that she was automatically entitled to bury her husband.
She argued that the matrimonial home was the best place to bury her husband as she would take care of the grave.
In his judgement on July 5 2023, Justice Eric Ogolla acknowledged that the deceased could be buried either in Kamulu or Kiango, since both houses were erected 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 apply during the burial.
The brothers would hear none of it as they moved to the Court of Appeal arguing that it was their brother’s wish for his remains to be interred in Kiago, Bomachoge Borabu constituency in Kisii County.
“There is no evidence that the deceased’s wishes were for him to be buried in Kamulu. Therefore, it is in public interest and in the interest of justice for the deceased to be buried in accordance with the Gusii community customs and not as per the wishes of his nuclear family as was held by the High Court,” the brothers said.
In the appeal, the brothers argued that although the wife had the absolute right over the body, Onderi was a prominent member of the Gusii community and according to his wishes, he is to be buried in Kiago, as evidenced in his actions of building a permanent house in accordance to the Gusii customs.
The court further heard that the larger Mogunde family have prepared for the burial place and stand to suffer substantial pain, loss and anguish if the orders sought are not granted.
The widow opposed the case arguing that the delay in burying her husband has caused her psychological and mental anguish.
She argued that the body continues to accumulate charges at the morgue.
The daily mortuary charges for preserving the body is Sh4,000 and as at June 12, 2023 the mortuary charges stood at Sh391,000, she said.
The Court of Appeal judges agreed that burial disputes are not simple.
Justice Gachoka said the society is dynamic, and a mere statement that one belongs to this or that tribe is not enough, especially in a case like this, where there are conflicting positions.
“Probably, it is time we put the law on burial disputes to rest but this is easier said than done as humanity is not homogenous; every society has its own burial beliefs, rites, and customs. As if those customs are not enough, the religious beliefs and the interplay with the customs and the question which takes priority over the other only make the disputes even more complicated,” Justice Gachoka said.
The judge said in Christian theology, we are told that Jesus of Nazareth, predicted his death, but he did not at any point prophesy that Joseph of Arimathea would inter his body at Golgotha.
“Fortunately, no burial dispute ensued,” he said.
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