WIDOWS HAVE A RIGHT TO BURY THEIR HUSBANDS IN THEIR ESTABLISHED HOMES

It appears to me that case law now seeks to fill the lacunae created by absence of the law on deceased persons persons in Kenya. Take a look at the following judgment by A Mshila J, delivered at the High Court of Kenya in Nairobi on March 13th 2012. The case in question Lucy Kemboi v Cleti Kurgat & 5 Others (2012) eKLR the Honorable judge categorically renders the S. M. Otieno Case bad law.

The court in its obiter expressed the view that a widow has a right, just like that of  her in-laws, to bury the remains of her  husband. The Honorable Court furthe held that Article 27 (3) and (4) of the constitution protected a widow's right to bury the remains of her husband. This she explained that Article 27 (3) and (4) protects a widow from being discriminated upon by cultural practices.  It was further explained that Article 27(3) and (4) of the  Constitution gives both women and men the right to equal opportunities in  cultural and social spheres and also provides that there should be no  discrimination directly or indirectly against any person on any ground.

Lucy Kemboi brought a suit against  her in-laws seeking authority to arrange for  the collection, burial and interment of the body of her husband the late  Ambrose Kipkoech Kurgat at their matrimonial home at Kamariny, Keiyo Marakwet  County, on such reasonable time as she may determine, with liberty to the  defendants to participate at their discretion.

According to Lucy, the deceased was her husband  and after he had passed on her In-laws held meetings and made funeral  arrangements without involving her or her children. The meetings were held at  her late husband's step- mother's house and she was not afforded any hearing  and was only given information as to what had been decided. Lucy submitted that  she only got to know that her in-laws intended to bury the deceased next to the  grave of his late father through a defence filed by her in-laws after she had  filed a suit in the Chief Magistrates Court. She also submitted that her late  husband had a homestead and  that she had  constructed a house there together with her late husband. She stated that the  homestead and house were located on a parcel of land, which piece of land was  demarcated and given to her late husband by the deceased's late father and that  it was upon that portion of land that she wanted to bury him.  Lucy further submitted that whereas her in-laws wanted her late husband at  a grave site set apart by her  late  father in-law as a family graveyard, the said  site was approximately two hundred (200)  metres from her homestead and therefore she should have  been allowed to bury her late husband at the  right place where she had built a house and established a homestead.

In support of her case, Lucy called a Keiyo elder  to testify on her behalf on Keiyo customs. It was the elder's evidence that according  to Keiyo customs, meetings  for such  funeral arrangements had to be held at the house of the deceased in  consultation with the deceased's widow and children and  that it was the practice that a married man had  to be buried in his "Boma" and that it was the clan elders who decided where a  deceased person was supposed to be buried.

The defendants on their part  submitted that their late father had set apart, aportion of the land as a  graveyard, arguing that the burial site was outside the "Boma" of their late  father and that their late father's remains, their mother's, their sister's and  grandmother had been interred on that piece of land. The defendants also submitted  that the alleged house built by Lucy and their late brother, was built for purposes  of hosting their daughter's wedding, otherwise the deceased had a rented room  in a place called Chembulet and carried on a business of a bar.

The defendants further submitted  that Lucy lived in a rented house in Iten and  that she never slept in their home built in Kamariny. They stated that Lucy  would attend the funeral meetings and would retire to her house in Iten after  the meetings. It was their contention that the deceased had not been shown any  portion of land by their late father but he had gone  ahead and built the house on the portion. The defendants  further submitted  that their father's  estate had not been distributed and that the site of the deceased's house might  not have been the deceased's allotment upon distribution. They   also testified that one of  their late brother  was buried on a piece of land that he had been  given by their late father and that he had established his home on that piece  of land, hence his being interred there. The defendants therefore asked the court  that they should be allowed to inter the deceased at the family grave yard.

It was the Court's view that though Keiyo  customary law was applicable and that under the said customary law the clan  together with the deceased brothers were responsible for the burial of the  deceased, Lucy having been married to the deceased had a right derived from  written law to bury the deceased. The Court further stated that the rights  of Lucy were provided for and protected by the Constitution, in that Lucy  should not be discriminated upon by cultural practices, that she had an equal  right as her in-laws and the clan to bury her husband's remains.

In answering  the question as to  where the deceased had  established a home, the  Court reffered to the case of Apeli v Buluku C.A No.  12 of 1979 where it was held that "…a  person wishing to be buried outside his father's homestead takes steps to have  an acceptable and established home elsewhere…" . In view of that , the  court observed that  by conduct and by  reference from the  facts, neither the  deceased nor Lucy had established a permanent home at Kamariny and that  the fact that a temporary house had been built  on the said portion of land did not confer ownership of the property upon the  deceased.

From the foregoing,  Mshila J held that the deceased did not have a title to  the portion of land at her alleged homestead as the estate was yet to be  distributed nor had a Grant of Letters of Administration been taken out over  their late father's estate. Thus by giving Lucy the body to bury at the  alleged homestead  would interfere with  the other family members' rights to the property.Therefore, the  Court   ordered that the deceased's body be handed over to Lucy and her in-laws  jointly or to any one of them for burial at the site set apart by the late  father in-law and father respectively   for burial.