The Battle For The Last Rest: Burial Disputes In Kenya

Introduction

The burial of a loved one in Kenya is rarely a quiet legal formality; it is an emotive passage where memory, culture, and identity gather around the silent body of the departed. In that solemn moment, a person’s life once lived in ordinary days suddenly stands illuminated, and the customs of family and community rise to claim their place.

Among Kenyan households and communities, burial is more than the lowering of a body into the earth. It is a meeting of histories, where lineage, tradition, and belonging speak in hushed but powerful voices. Grief draws relatives near, yet it can also awaken old customs and deeply held beliefs about where one belongs, even in death.

This truth becomes even sharper where the departed walked many worlds in life among the wealthy and prominent, where public stature invites many claims; among families divided by faith, where prayers rise from different altars; and within pluralistic societies shaped by intermarriages, where cultures intertwine like rivers meeting.

In such moments, the question of burial becomes not merely about soil, fire, water and ceremony, but about heritage, religion, love, and the final home of a life that touched many paths. And so, beneath the Kenyan sky, the journey to lay one of our own to rest often reveals the delicate threads that bind family, faith, and tradition together.

The premise of the disputes is normally around the notion that whoever has control of the deceased final resting place has an upper hand during the succession proceedings. The most common forms of disputes are usually around:

✔Inter-ethnic marriages which bring about cultural conflicts where the customs of the deceased and his or her relatives and family members on burial differ from those of the widow or widower as the case may be.
✔Where the deceased was polygamous, then an issue arises as to who among his families has the right to bury them, coupled up with cultural differences of the families. This is quite common in our society today.
✔Where the deceased person, prior to his death, expressed certain wishes on where to be buried but his relatives prefer a different location for any other reasons.
✔Religious conversion is also a factor that leads to such conflicts especially where the deceased person during his lifetime or prior to his death changed his religion for instance from being a Christian to a Muslim, this brings about the question of which religion should be followed in conducting the burial.

The disputes usually manifest in the obtaining of burial permits, application of death certificates, collection of the deceased mortal remains, land disputes among others. Overtime the Courts have developed tests for the resolution of burial disputes

1. The wishes of the Deceased person in their lifetime

In the SAN v GW [2020] KECA 46 (KLR), the Court of Appeal ranked the wishes of the deceased in priority to any other right and/or consideration. The court was however quick to clarify that the said wishes are not binding because, in the first place, there is no property in a dead body."

This is further Supported by the Case of James Apeli & Enoka Olasi vs. Priscilla Buluku Civil Appeal No. 12 of 1979 [1985] EKLR it was held by the Court of Appeal that:

“There can be no property in a dead body. A person cannot dispose of his body by will. After death the custody and possession of the body belong to the executors until it is buried… If the deceased had left directions as to the disposal of his body though these are not legally binding on his personal representative, effect should be given to his wishes as far as that is possible.”

2. The Relationship of the Parties and the Deceased

Article 45 of the Constitution recognizes the family unit and provides that ‘the family is the natural and fundamental unit of the Society and the necessary basis of social order and shall enjoy recognition and protection of the state.’ The nuclear family is the basic unit of the family which is recognized and protected by the state. The core and basic unit of a family is the nuclear family; this means that basic unit of the family has rights that should be recognized and upheld by the state.Courts have recognized this and have held in the SAN v GW [2020] KECA 46 (KLR)that

The third aspect of this dispute is that the law only recognizes the persons who are closest to the deceased to have the right to bury the deceased. Those persons have been identified as the spouse, children, parents, and siblings in that order"

3. Conduct of Persons to the Deceased

The courts have also adopted the relations of the deceases and the people that want to inter them. This was highlighted in the Oliver Bonareri Omoi & 5 others v Joseph Basweti Orogo [2010] KEHC 1099 (KLR) by Maraga J as then was when he stated

For over 30 years the deceased was separated from the respondent. For over 30 years the respondent did not know where or how the deceased lived. He was not concerned with the deceased’s sickness. How, in the circumstances, can such a man be allowed to take the deceased’s body to Kisii for burial against her wishes just because he wants to avoid condemnation by his community? It would be immoral to allow such estranged husband to purport to love his wife in death. I have no hesitation in finding that, in the circumstances of this case, the deceased’s wishes override the respondent’s customary law right to bury her body in his ancestral home in Kisii.

This was also noted in the case of in Samuel Onindo Wambi vs. COO & Another Kisumu Civil App No. 13 of 2011 (2015) eKLR expressed the following view:

“…A person’s conduct to a deceased person can extinguish the right of that person of burying the remains of the deceased. The appellant did not show any family closeness with the deceased when she was alive. Though he said that he used to visit the deceased and that he mobilized his siblings to build a house for her at Kibos there was no credible evidence to prove so. (sic). The fact that he was the deceased’s First-born son did not give him an automatic right to bury her even if Luo customary law dictates so. The court has to consider all the circumstances of the case and the justice of the case…In this case, besides the fact that given the father and his family’s treatment of the deceased he is not deserving of the right to bury the deceased’s remains”.

4. Culture of the Deceased

In Kenya, the culture of the deceased plays a central and often decisive role in burial disputes. Courts, families, and communities frequently look to cultural identity as a guide to determine where and how a person should be buried especially when disagreements arise.In the seminal case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & U Another [1987] KEHC 1 (KLR), the Court engaged in a detailed examination a¢.[ the cultural rites required to establish a boma under Luo customs, with guidance from cultural experts. The Court stated

"According to that evidence, a Luo home is sanctioned by a father or in his absence, by his brother on his behalf. The way to go about it was explained thus. A father or an uncle, as the case may be, of a man who wishes to establish a home, rises early in the morning accompanied by the man and that man's eldest son (under grandson). The grandson carries an axe, while the man carries a cock and some fire, They then proceed to the place where the man's father desires that his son makes a home. At that spot the man ties the cock, covers it with a basket and leaves Kt it there over-night. On the next day the three people return to that spot. If for some reason the cock is not found there, the site is considered unsuitable for the establishment of a home and they must then look for a new site. If, however, the cock is found still there, the site would be considered suitable for a home."

The same has been affirmed in Adhola v Kudha &2 others; St. Elizabeth Lwak Mortuary (Interested Party) (Civil Appeal E007 of 2024) [2024] KEHC 8491 (KLR) (12 July 2024) (Judgment) where the court held as follows:

Being one who had adopted Luo customary law, practiced and lived the same, this court is convinced beyond doubt, that in this dispute relating to the burial of the deceased, it is Luo customary law that ought to be applied to determine where and by whom the deceased ought to be buried.'