The complexion of death has been throughout all human history fodder for writers and poets, and is the root of the world’s major and minor religious traditions, and of philosophical investigation and debate. The most primitive indication of religious faith is the ritualised burial of the dead. Beliefs in some kind of afterlife, rebirth or reincarnation has been a fundamental feature of religious faith and is a common thread throughout all civilizations from the modern era to Ancient Egypt back to the Sumerians. As one travels even further back into history into the Palaeolithic era, it is clear through archaeological findings that even early hominids including Neanderthals intentionally buried the dead. It seems death, throughout our evolutionary history, has always fascinated the psyche.
In the modern era death has been defined as the permanent cessation of biological functions in living organisms. Historically it has been termed as the termination of breathing and a lack of heartbeat however, with the progress evidenced in science for example the invention of CPR and pacemakers, the context of death has changed dramatically and the envelope continues to be pushed further as medical science aims to understand the parameters surrounding death, now defining true death as the ceasing of all electrical brain activity which points to the end of consciousness. The lack of consensus makes it extremely difficult to define the purely conjectural precincts between what we call life and what is termed as death making it a bone of contention for modern legal practitioners. Once death has been determined to have occurred however, in most cultures around the world there are certain rituals and ceremonies that take place, much of which revolves around caring for the body, the afterlife as well as the disposal of the corpse. Most societies dispose of their dead through certain rites according to spiritual traditions developed and passed down through the generations.
The African Concept of Death & The Afterlife
In African society the conception of death is intricately tied to life, in fact they are not mutually exclusive concepts but exist in a continuum. Thus according to many traditions throughout continental Africa, death is merely a rite of passage through to another plain of existence, a transition which does not alter or end the life or change the temperament of a person, but only causes a change in its form. This is expressed in the idea of “ancestors,” individuals who have died but who continue to “live” in the community and commune with their families. The goal of death is to become an ancestor. For this reason, individuals must be given an “accurate” burial, bounded by abundant religious formalities.
In most cases if “proper” burial rites are not observed, the deceased may become a wandering ghost, unable to exist in a proper manner after their death and are thus a menace to those whom they have left behind. It has been argued that “proper” death rites are more a ‘guarantee of protection’ for the living than to secure a safe transitional phase for the dying. There is a witnessed incongruity of viewpoints to those who have recently passed, which tend to oscillate between both immovable respect and love for the deceased and a certain dread or despair on the other hand. This is predominantly because it is believed that those who have passed have some ardent power over those that are living.
Most African societies believe in a Supreme Being, who is the author of our existence. The dead are also believed to be somehow nearer to this Supreme Being than the living. These societies believe that humanity’s separation from the Supreme Being remains inescapable and an innate state in the place of those who have departed from this plain of existence. Most African societies also believe in the concept of rewards and punishments much like Christianity. In the afterlife rewards and punishments are believed to occur automatically, notwithstanding the individual’s terrestrial performance, given that all the necessary burial rites have been observed. But if the deceased is thought to have broken the community codes or taboos, or has had an atypical death or an improper burial, then such an individual may be condemned to some sort of punishment in the afterlife and may also be banished by their ancestors or even exposed to a phase of torment according to the gravity of their transgressions.
The rites of death in the African context as a custom are all important and help strengthen social, local and psychological bonds. In a continent that continually feels the pressures of a globalized world, conflict is bound to arise between traditional practices and modernity. This may be found in the legal sphere as is evinced in the Kenyan case of the disputed burial of Silvano Melea Otieno. With its rich history as a colony, Kenya’s legal system has had to play a delicate balancing act between its colonial legacy and traditional customs. The aim of this paper is to give a clear outline of Kenya’s numerous customs including death and burial and the application of Customary Law within its boundaries, in order to create a blueprint for any future developments.
Death and Burial in Kenyan Society
The dramatic dispute of the burial of S.M. Otieno that is the foundation for this paper highlighted the characteristic conflict that is custom versus modernism. The legal wrangling that arose between Otieno’s family members, with his widow Wambui Otieno of Kikuyu origin on one side, and his brothers Joash Ochieng and Omolo Siranga of the Luo Umira Kager Clan on the other, raised the issue of the compatibility between Kenya’s Customary laws and the country’s inherited colonial legal system.
The question put to the courts was, who had the legal right to bury the remains of the deceased? And where was the burial to take place? These questions shall be answered in the second chapter of this paper concerning the application of Kenyan Customary laws however; the case gives credence to the importance of funerary rites amongst the Luo community.
As mentioned earlier in the introduction, death has many different meanings in different cultures. However, Luo beliefs share some commonalities with those cultures that believe in an afterlife. It is seen as a rite de passage much like birth, initiations into adulthood, marriage etc. According to Ocholla-Ayayo, “death amongst the Luo is expressed as a ‘crisis of life’ and an element in the life cycle of the individual.” The customary belief that death is not the end is evident in the Luo belief in ancestors and the element of a spiritual transformation post-mortem into an entity that still belongs to one’s clan. Under Luo custom, the modes in which one goes through his/her rites of passage from birth to burial are “important considerations in the transition from the physical to the spiritual mode of existence.”
The Luo are a Western Nilotic peoples that inhabit the areas surrounding Lake Victoria. Luoland, as it is referred to, is divided into numerous sub-divisions that correlate with both clans and lineages. As clans differ, so do customs as per the burial of the dead, however, Luo’s do share in common certain rites. The rites surrounding burial amongst the Luo include;
1) Death announcement
2) Vigil (budho)
3) Grave digging (kunyo)
4) Burial (iko)
5) Accompanying the spirit (tero buru matin)
6) Shaving (liedo)
7) Mourner’s depature for their homes (kee)
8) Serving a meal to the family of the deceased by married women (yaoodhot/tedo)
9) Going to the former battleground with the spirit of the deceased (tero buru maduong’)
10) Visiting the widow’s natal home( tero cholla)
11) Dividing articles left by the deceased (keyo nyinyo)
12) Remembrance (rapar)
13) Serving a meal to the deceased’s family by relatives (budho)
In Luo burial customs the individual’s status in society, the nature of his death, his good and bad deeds, as well as the way the ancestors performed the rituals, were determining factors in the manner and location of the burial. The numerous differing modes of death through illness were also decisive elements as to the rituals to be followed after one’s death. In most cases when an individual died outside of his home, intricate rituals were followed. The deceased’s body was never brought through the main entrance to the homestead, but through a fence while rituals were being performed. Those who committed suicide were thought to have committed a great transgression. Though the individual would be buried by his fellow tribesmen, a ritualised flogging of the body would take place in order to denounce the act. Burial rites also differed according to gender. Barren women would be stuck in the feet with thorns, ‘and a cat tethered to the neck of the corpse before burial.’ Daughters who were unmarried were buried ‘behind the fence of the homestead’ and if they had children, those that passed were also buried outside the homestead, ‘on the left side.’
Ocholla-Ayayo states that the differentiation in burial methods served as a means to highlight the differing social distinctions amongst members of the tribe, thus maintaining order through protocol in turn mirroring the innate order in the universe and the individual’s link to it. The importance of these rituals is that they created a link between the spirit of the dead and their fellow clansmen; for example, those rituals connected to one’s murder, once the murderer was deceased, his victim’s spirit would haunt the murderer’s lineage , those concerned with the transfer of one’s ancestor’s talents, such as medicine, divination, smithery, were important due to the fact that at the time when rites were exercised, the individual’s son would remain tied to the guiding spirit in order ‘to lead him to the ancestral profession’ and ‘those rites concerned with sickness…[guided] the spirit of the deceased to the world of the ancestor’s spirits’ connecting them to those affiliated with their tribe or pedigree etc.
Luo beliefs concerning the cause of death are usually not considered to be a definitive explanation of the incident. Death is sometimes attributed to paranormal causes such as the malevolence of spirits, ghosts or wizards, or what is referred to as kwer or chira, which is the breaking of taboos usually ranging on a scale of gravity, thus such ‘breaches may in some cases attract the visitation of death upon the culprit…’ God’s will is also seen as an explanation to death as well as those physical conditions which are seen in some way to be the work of evil agents in search for revenge.
In the study of Luo custom it is interesting to see that some persons according to social distinction were not allowed a natural death. In some cases ritual killings would take place where the killer ‘was the person who hit the target first or last [after which] such a killer had to be ritually cleansed.’ After burial rites have been observed, disposal of the body took centre stage. Among the Luo, burial i.e. deep burial (five feet or deeper), is the primary means of disposing of a corpse. The arraying of the deceased’s body is an important part of Luo custom. The body may be placed in several different positions; on the side, contracted or extended, sitting or standing, in fact this is one of the means anthropologists and archaeologists differentiate between communities. In Luo custom, ‘burial for the infant or still-born was strictly observed’ , depending on gender; the girl was laid to rest on her right side, while the boy was placed on his left. The body of the infant was always cleansed prior to burial. Mourning was also reserved for the mother of the deceased infant lasting for up to three days in the case of the girl child and an added day for the male infant.
Another tradition amongst the Luo is the cenotaph, an empty tomb representing the deceased who has been buried in another location. The community will bury a yago fruit in the cenotaph or bury it by the lakeshore for someone who died by drowning and whose body was not recovered. Cremation has also occurred under special circumstances amongst the Luo. This would include a case in which a body is inhumed then cremated due to a malevolent ghost. The time of burial is all important amongst the Luo. The dead are rarely buried at night, at sunset or in the morning. The customary burial times are usually between the hours of 2 p.m. and 4 p.m. with the mourning period lasting about three days for an adult female and four days for an adult male who is deceased. Mourning is usually done by those having a kindred relationship with the deceased. These relationships may exist in several forms including those that are based on politics. If the deceased is an adult female, close relatives amongst the Luo cannot share a bed with their wives for a period lasting up to four days. These mourners are ‘expected to spend nights of mourning around a ritual fire (magenga) which remains alight in the courtyard.’ Mourning rituals vary according to the deceased’s social status and in modern times are influenced by the demands of Christianity. Special funeral ceremonial dress (chodo chieno) is worn while certain members of the community don shields and spears.
Tero buru entails mock fighting, emphasizing the deceased’s heritage as a warrior amongst his fellow tribesmen, as they fight the spirits surrounding death. Other highlights encompassing the mourning period included in some instances a cessation of bathing, cultivation, harvesting or fishing during the period of mourning. The digging of the grave amongst the Luo, must be by the deceased’s relative who must be a male adult not related by marriage. This individual must also belong to the deceased’s clan. The grave is usually located within the homestead and is determined by the deceased’s specifics including social status, nature of death and sex. Graves are usually rectangular in nature. Grave goods were also an important ritual especially with regard to the elderly. Beer pots, smoking pipes etc. gave valuable information pertaining to the social position and sex of the dead.The Luo belief in the after-life is espoused in the integral belief that a person’s social status during life and his final words at death in effect determine his or her relationship with those left behind. Curses or blessings have also been thought to be capable of being visited upon an individual by the elderly, thus last words spoken at the time of a funeral are in the form of either these specific curses or blessings and are usually binding to the relatives of the deceased. The rites observed in preparation for the afterlife are part of the continuum that fulfill one’s social responsibilities. The intricate relationship between the dead and alive is also evinced in Luo nomenclature which historically incorporates the name of the spirits (nying juogi). It is customary in the naming ceremony for rituals to be performed to determine whether the deceased may have been reincarnated. It is also believed that the spiritual body has an abode which correlates with the deceased’s traditional home which is ruled by Obel Sibuth ruoth mar jochiende(lord of the dead) much akin to Hades in Greek mythology. The rituals surrounding death amongst the Luo are systematic and must be adhered to. They maintain ancestral links, guide succession and inheritance, and underscore the interdependence and the conjoint relations of living kinsmen.
Death and funeral rites amongst the Luhya involve not only the bereaved immediate family, but also extend to other relatives and the community at large. While it is known that many deaths occur through illnessess, as well as accidents, quite a few deaths are still believed to occur from witchcraft and other supernatural phenomena. Burial often takes place in the deceased’s homestead and are usually public and open events. Traditionally, the Luhya religion is that of animism and spiritism. Giving honor to the ancestral spirits is seen as a very important ritual. Sacrifices are made to please these spirits. The ritualistic slaughter of animals and the serving of food and drinks are done to console the mourners at the time of the funeral. The funeral itself is viewed as an intrinsic custom aimed to please the ancestral spirits. Key holidays such as Lisaabo which is a remembrance of dead ancestors and the spiritual realm also takes place. Due to the prevalence of Christianity in Kenyan communities, burial ceremonies even amongst the Luhya often involve prayers in a church and as well as at the dead person’s home, alongside traditional rituals. According to funerary custom the bereaved family members must be shaved on the third day so as to rid themselves of what is known as ‘bukhutsakhali’ which is the breath of the dead. Widows are also expected to wear their husband’s clothing.As in Luo custom, the Luhya have differing rituals depending on one’s status. With regard to barren women, it is practice that ‘a thorn would be plugged between the hips of the deceased woman before burial.’ If the deceased was a wealthy or influential man, a big tree would be uprooted and the deceased would be buried there, after the burial another tree Mutoto, Mukhuyu or Mukumu would be planted (This was a sacred tree and is found along most Luhya migration paths it could only be planted By a righteous Lady mostly Virgin or a Very Old Lady). If the deceased was a respected elder within the community, a cattle drive known as eshirembe was held in order to recognize the deceased’s status as a cattle owner. The communities of Western Kenya including the Luhya bury their dead infants (including still-borns). The Luhya methods of burying the infant only differ from the Luo on small details. The practice of burying a yago fruit in the cenotaph is also practiced by the Abaluhya who instead use a banana stem where an individual is believed to be dead but their body cannot be located. One’s burial positioning amongst the Luhya are usually contracted or extended as is prevalent in most Western parts of the country. The reasons for these practices are very much related to the ‘mythology or origin of the clan.’ After the burial mourners gather at the grave site in order to perform a ritualistic dance known as the ‘dance of the dead’, in which the widow would dance on the grave. In order to perform this dance the widow must not have been unfaithful to her deceased husband.
According to Maasai mythology, Enkai created the first warrior, Le-eyo and endowed him with a magical chant which was to be recited over dead children that would bring them back to life and make them immortal. In the fables, Le-eyo did not utter these chants until his own son had died. By then, however, it was too late – because of the selfishness of Le-eyo, death will always have power over men. The Maasai acknowledge the existence of innumerable spirits of whom the chief is known as Ngai. Burial amongst this tribe is generally under a tree in the sitting position with the deceased’s chin resting on the knees. The body is then covered with stones; but the landmark is weak and hyenas are known to sniff out the corpse and pull it from its tomb. This is known as the practice of exposure wherein the corpse is either laid in a shallow grave or exposed to the elements to be destroyed by either animals or birds of prey. In nomadic communities such as the Masai, the sick or aged were not allowed to die in the home. Instead they were removed and taken into the forest, hillside or lay abandoned by the river. A certain belief in a future life is indicated by burial of a calabash of milk beside the corpse and by the fact that the name of the departed is never mentioned lest the spirit should regard it as a call and come back.
The Kikuyu are believed to have migrated to Central Kenya from Central Africa together with other Bantu groups. They unlike the Nilotic tribes were pastoralists who began farming the very fertile land around Mt. Kenya. Traditionally being monotheists, they came to believe in a Supreme Being whom they called Ngai which evolved from the Maasai Enkai. The Kikuyu believe that Ngai created the whole universe along with humanity, providing them with resources necessary for existence. Under Kikuyu customary law, it was seen as a great transgression for any member of the tribe to touch a corpse. In his biography, Francis Hall mentions having had to bury victims of disease himself because Kikuyu custom did not allow for the Kikuyu to touch corpses. Much like the Maasai, the sickly and aged were not left to die in their homes but were removed and taken to remote locations such as forests or hillsides. Up until the arrival of the colonialists, the Kikuyu also practiced exposure. It was custom to place the dying individual at a specified distance from the settlement, ‘putting on his or her right hand a leash to be tugged from time to time (especially at meal times) so as to determine if the person was dead or still alive.’ If the individual failed to respond it was determined that he or she had passed and communication was no longer necessary. After death, usually those who had children even if the children had all died were accorded respect during funeral rites that culminated in a full Gũkũra ceremony which meant among other things that the spirit achieved a status which it would not have had otherwise.
Amongst the Kikuyu, the dead body was taken out to a burial ground called a kĩbĩrĩra. Certain rituals were practised prior to burial including the careful wrapping of the body with the legs and hands in the sleeping position, and the kĩbĩrĩra would be placed facing the homestead. Contrary to the belief that the Kikuyu threw all deceased to hyenas, a person of means was accorded a burial. These burials were often an expensive affair in view of all the rites that had to be paid for in goats and rams.
The Kamba have much in common with many other Kenyan tribes. They have varying legends that recount the story of the first men having had the gift of either immortality or of rising again after death. According to Kamba mythology, their God one day decided to make this phenomenon a permanent, so he called for a messenger. It is said that the Kamba people sent a very slow and careful animal, such as a chameleon or mole, to receive and deliver the message. As it was deemed to be a message from God, once it was delivered, it could not be taken back. The Kamba believe that on his way back down to earth, the animal either forgot the message, or foolishly blurted it out to an envious animal, such as the jackal, who then ran to tell the people the opposite of what God had commanded. It is said that henceforth, mankind was doomed to die and never rise again. This tale along with the Kikuyu tale of the Origin of Death is quite similar. The Kamba have several allegorical expressions for passing, they include; following the company of one’s grandfathers, going home, to stop snoring, to be fetched or summoned, to empty out the soul,to come to ruins, to become God’s property etc.. The Kamba have also practiced exposure much like the Kikuyu and the Maasai.
The Meru attitudes towards death differ depending on both how the person had behaved or carried him or herself while alive, and his or her status in society. If it were a good or ‘accomplished’ person (akiri), it was custom to say ‘may he sleep in the region where rains are timely’ (Aromaama kuuraga), or ‘he ascended and left us’ (Naitirie-a-tutiga). In contrast, if the deceased had been a wicked or rather evil individual the Meru would say, ‘where he went he never got a place to build a house, he always wanders with his building sticks on his shoulders’ (Naaria eetire, ka ereeraga na miti yawe iri ituro).
In this community if an ‘accomplished’ individual died, despite bereavement and sense of loss, the event was not seen as a breach of day to day life, but was instead accompanied by an inconspicuous and sombre period of mourning and ritual. The death of an akiri marked the prosperous end to one particular cycle of life, and was within the normal sequence of events. The death of a wicked or ‘unfinished’ person – was seen as a disastrous and perilous event. ‘Unfinished’ refers to those individuals who have not yet attained the status of elderhood and those seniors who died too early to observe the ceremonial transfer of power to the next generation thus these situations required certain rituals. The Meru also believed that if a corpse was defiled, the deceased was permanently severed from the living. They also practiced the ritualistic exposure of the dead when death was imminent. The individual would be taken into the forest or put in what was called the ‘hut of death.’On the other hand, if someone died in their home, the house had to be destroyed, and the body dragged out by a rope to the bush where it was abandoned. The Meru much like the Kikuyu also harboured a fear of contamination thus the corpse was rarely touched. Those who disposed of the body underwent cleansing rituals including the family members, who were shaven.
Much like the neighbouring Luo, the Gusii believe that death is unnatural. Historically and as well as today in some rural circles it is habitually blamed on witchcraft (oborogi). In the event of a death, the bereaved mourned publicly; this varied by degrees depending on the deceased’s social status. An infant who died was customarily buried in the floor of the house. Few people attended this event and there was very little wailing. When a man of great wealth or social standing died there was much more mourning in contrast to the death of a minor. The corpse of a dead Gusii adult was buried just outside his home; a man was usually buried on the right side of the house, and the woman left.
Following the burial, amongst the Gusii a public funeral would take place. If the dead male was married, his wives, children and certain of his close relations performed the shaving of their heads at the grave site. Property such as the deceased’s bed or walking stick, were used as grave goods. Gusii men were known to attend the burial with spears, horns, and bells, as well as a few head of cattle each. The cattle were driven around the deceased’s homestead while crying, shouting, ringing bells and blowing horns and whistles. Wooden drums were also beaten during these ceremonial occasions. The drummer would beat his drum while the women wailed and sang the praises of the deceased.
The varied rites outlined above are a sample of the more than 40 tribes in Kenya. They are but the tip of the iceberg so to speak when it comes to practice of customs. In the next chapter, this paper aims to tackle the varying conflicts that arise when custom and the common law tradition come to a head, be it conflict based on marriage rites or some other tradition or custom.
The Application of Kenyan Customary Law
THE HISTORY OF THE KENYAN LEGAL TRADITION
In every legal tradition there exists a hierarchy of laws. On occasion, conflict may arise between a law enacted by one agency and a law established by another. In these cases, the source of law higher on the hierarchy supplants the other. This is evident in the supremacy of the Constitution which states in Section 2 Clause (1) that, ‘This constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government’, and Clause (4) which reads; ‘Any law, including customary law, that is inconsistent with the constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.’
The legal custom in force in Kenya is derived from two reservoirs; firstly the local-social forces upheld through tradition that direct enactments, and secondly the adopted fountain of acknowledged authoritative laws. The former refers to the local African, Hindu and Islamic customs while the latter points to the general customs of the realm of the Commonwealth i.e. the common law.
Local customs have been an integral source of law; however its importance has diminished over time with the growth of the legal system in Kenya. The effect of custom upon established law is representative of the early stages of a legal system than of its mature growth. Under the auspices of the British Protectorate, the Kenyan colony had parallel legal traditions comprising of:
(a) The African Courts which applied customary law, with appeals heard at the African Appeals Court,
(b) Islamic law which was applied by the Courts of Liwali, Mudir and Kadhis, with appeals heard at the Supreme Court which was later to be named the High Court at the time of independence.
The jurisdictions of these courts were outlined in several statutes which include; the Kenya Colony Order in the Council of 1921, as well as the Native Tribunals Ordinance 1930. The process of integrating the aforementioned parallel legal systems within the judiciary took place in 1962 as the African Courts’ proceedings were allocated to magistrates. This was provided for by the enactment of several acts;
(a) The Magistrates’ Courts Act 1967 – this eliminated the need for the African Courts and the Court of Review thereafter being replaced by District and Resident Magistrate’s Courts and the High Court; and
(b) The Kadhis’ Courts Act 1967 – which recognized Kadhis’ Courts for the application of Islamic customary laws.
The commissions formed in 1967 analyzed the position of marriage, inheritance and divorce laws in relation to custom, in order to create a unified code that would eventually replace the existing Islamic, Hindu, customary and statutory laws. In relation to Marriage law, it would be established that civil, Christian, Hindu and Muslim marriages would be governed by separate statutes, and communal acts and African customary law marriages would be governed by other legislation. This is stipulated for in the current Kenyan Constitution in Section 45 Clause (4)(a)(b);
(4) Parliament shall enact legislation that recognises –
(a) marriages concluded under any tradition, or system of religious, personal or family law; and
(b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion.
to the extent that any such marriages or systems of law are consistent with the Constitution.
With regard to inheritance, there were four systems of succession in force in Kenya up until 1981, namely; those based on statute and common law, those that were initially based on Hindu customary law and later on statute, those that subscribed to the principles stated in the Quran and finally those based on the African customary law, which differed by community. The recommendation was a homogeneous system that would be applicable with certain exceptions made for customary laws. The end result was the Law of Succession Act Cap 160 of 1981.
There are several other Acts of Parliament and adopted statutes that govern the application of customary law, they include; Hindu Marriage Divorce and Succession Ordinance Cap 43, Administration of Estates Act 1925, The Marriage Act Cap 150, African Christian Marriage and Divorce Act, African Wills Act Cap 169, Indian Succession Act 1865, Burial Act 1857, Law Reform(Married Women and Tortfeasors) Act 1935 etc.
CASES ON CONFLICT
In order for local custom to be applied in Kenya, it must conform to the following requirements instituted by law;
i. Reasonableness – malus usus abolendus est i.e. custom must be reasonable. This prerequisite simply points to the idea that to be deprived of legality a custom must be so repugnant to both morality and wisdom that were the law to enforce it, it would do more harm than good.
ii. Conformity to the enacted laws – any custom must bend to the Acts of Parliament.
iii. Observed widely – this requisite refers to the scope of practice of a custom. Customs must be followed openly, without resorting to violence, and without the permission of those subject to it being necessary.
iv. Time immemorial – in the canon law and civil law traditions this means a time so remote to human memory. In order for a custom to have the force of law it must be immemorial in origin.
The application of customary law in Kenya is provided for in the provisions of the Judicature Act Cap 8 Section 3 Clause (2), which espouses the principles mentioned above; ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.’
The Constitution and the Judicature Act, among other Acts of Parliament guide the courts when cases of conflict arise with regard to custom. The adjudication of these cases is left to the discretion of the judge, who mediates disputes by applying the principles that encapsulate the application of customary laws.
A Synopsis of the S.M. Otieno Case
Silvano Melea Otieno, was a criminal advocate, who belonged to the Umira Kager Clan of Luo origin, and had been born and raised in Nyalgunga sub-location of Siaya District. At the time of his death, which was 20th December 1986, he became a cause celebre, due to the dispute that arose between his widow Wambui Otieno of Kikuyu origin, and the defendants, the deceased’s younger brother Joasch Ochieng and the Umira Kager Clan. The legal questions placed to the courts were, who had the legal right to bury the remains of the deceased? And where was the burial to take place?
The plaintiff, Wambui Otieno, filed the suit on December 30th 1986, against the defendants who wanted the deceased to be buried at their father’s homestead in Nyalgunga in concurrence with established Luo customary law. Otieno’s widow however, wanted the burial to be at Upper Matasia in Kajiado District where Otieno had owned a farm. Wambui sought a declaration from the courts establishing her claim to her deceased’s husband’s body and to perform the burial ceremony at her specified location barring the defendants and anyone who made claims through them or under them. Her application was thereafter heard and approved by Shields J. The following day however, the defendant’s through their advocates filed a counter claim which was an order to discharge the decision made on 30th December by Shields J in favour of the plaintiff and an injunction to prevent Wambui Otieno, her proxies or servants from burying the deceased anywhere other than Otieno’s patriarchal homestead in Nyalgunga until the suit was heard. This application was heard and dismissed by Shields J with all costs going to Wambui’s estate and the burial dispute resolved in her favour. This judgment was made by the ex parte on the grounds that the defendants’ case ‘neither strong nor compelling’ as he found ‘nothing in the Kenyan law granting burial rights from representatives of dead man’s body.’This ruling was subsequently contested in the Court of Appeal where it was held that; the issue of burial was not governed by any Kenyan statute, English Common Law or English statute of general application as from August 12th 1897, as is demanded by the Judicature Act Cap 8 Section 3(1)(b). Thus the court had to make judgement based on customary law. And so with the rules of Luo customary law in application, the court ruled that the deceased was to be buried in his patriarchal homestead in a location determined by the members of the Umira Kager clan. The Luo customary laws concerning burial satisfied the litmus test for the requirements for application of customary law as stated above i.e. reasonableness, conformity to statute, wide observation and historical practice from time immemorial. The other arguments made by the plaintiff such as, Luo customs violated the Constitution in being discriminatory to women, could not stand due to the provisions in Section 82(4) which allowed for prejudicial practices in affairs of personal law. With regard to who had the rights to burial, the court held that both the plaintiff and the defendant had rights, but as they were in disagreement about the location of the burial, it was for the courts to administer justice as was demanded. The Court of Appeal ordered that S.M. Otieno’s body be given to the defendants’ and the plaintiff jointly for burial at Nyamila village, Nyalgunga sub-location, Siaya District. The judgement on this matter was guided by the provisions of the Judicature Act Cap 8 Section 3 Clause (1) and (2) which provide that for any customary law to apply, it must conform to the Constitution, one must ‘be guided by it’, ‘subject to or affected by it’,’ the laws must not be repugnant to both justice and morality or inconsistent with any written law’, ‘the circumstances of Kenya and its inhabitants permit and subject to qualifications as those circumstances may render necessary’ and in case of any conflict of rules it stipulates how said conflict is to be resolved.
The courts in this case needed to determine whether the parties involved were indeed subject to or affected by the customary law before applying it. Otieno’s widow Wambui had contended that her deceased husband was not subject to Luo customs because they were married under the Marriage Act Cap 150 and the deceased had also lived away from his ancestral home for a long period of time.
This did not stand as the court argued that; in his lifetime Otieno had attended atleast three funerals in his ancestral home, one of which was his father’s where he observed the customary four day mourning period and abstaining from coming into contact with his wife as was required, the deceased had claimed inheritance of the land left by his father( a claim that could not be made except under Luo custom) and the fact that he had paid as was required by custom dowry for his son’s wife, on the basis of these findings the court established the deceased had not, ‘renounced his tribe or declared that…he would not be bound or subject to customary law…’ The courts also determined that the Luo customary laws regarding burial were ‘not repugnant to justice and morality’ and could thus be applied. It could not be held that customs such as tero buru or sitting around a magenga (funeral fire) were repugnant. In the ruling of the courts the burial rites amongst the Luo also did not conflict with any written laws as there were no written laws concerning burials, thus custom could be applied. In passing his judgement Bosire J stated, ‘It is pertinent to observe here that Kenya has not enacted any law with regard to burial of the deceased person nor is there a statute of general application, in England, in that regard which was in force by 12th August 1897, which would by dint of s. 3(1) of the Judicature Act cap 8 laws of Kenya, be applied to Kenya.’ The lack of English authority regarding burial rites left the courts with the decision of implementing customary law. Customary law in this case decided that judgement would be for the defendant. This is due to the fact that the Luo customary laws met the criteria for application outlined in the Judicature Act Cap 8.
K.(Otherwise B.) v. K.E.A. 55
This was a divorce proceeding. The respondent in this case had gone through a form of ceremony with the appellant at the District Commissioner’s Office. At the time however the respondent was married to one Grace Waiyaki Kanga’ara in concurrence with Kikuyu customary law. The Counsel for the appellant argued that under the Matrimonial Causes Act a monogamous marriage that is between one man and one woman is null and void if there exists another marriage contracted under customary law. The counsel also cited a previous case of R.S. v. S.S., in which the appellant and the respondent who were both Sikhs were married in a Sikh ceremony in December 1957, and this was a valid marriage under the Hindu Marriage, Divorce and Succession Ordinance Cap 149. At the time it was also a potentially polygamous marriage because the respondent could take on a second wife by Sikh ceremony. It so followed in Novermber 1958 the respondent went through a civil ceremony with the co-respondent under the Marriage Ordinance Cap 144 (now the Marriage Act Cap 150). In this case the appellant petitioned for divorce on the grounds that her husband had committed adultery with the second wife. The could held in this case that only a monogamous marriage can be created by a ceremony under the Marriage Act, and as the husband was already married, the ceremony was valid and created no marriage status and therefore the respondent had indeed committed adultery with the co-respondent. In its ruling the court held that the aforementioned decision in the R.S. v. S.S. was binding and that the respondent’s subsequent monogamous marriage is null and void. The appellant was granted a decree nisi and the costs of the petition borne by the respondent.
Though polygamy has been observed widely in Kenyan culture from time immemorial, its practice as per the Marriage Act Cap 150 makes it null and void because it is in direct conflict with the written law.
JOSAM KIMUDU AND FINIKE MBOGO v. DAVID MUSAMALI
In this case the plaintiffs claimed for the defendant; damages for breach of marriage, compensation for pregnancy according to Luhya custom, an order to restore the custody of the infant to its lawful Mother, until it is old enough to live away from the Mother, compensation for expenses incurred in maternity including clothing and transport totalling 800 kshs, as well as the costs of the suit. The court held that the defendant promised to marry the second plaintiff and made her pregnant. The court ordered that damages for breach of marriage could not stand as there was no law enacted for that purpose in African law of marriage and did not exist in Luhya customary law of marriage. The court also held according to Maragoli Customary Law Part iv section (3) of Matrimonial and Offences that, “Any person who makes an unmarried girl pregnant is liable under Luhya Law to pay a fixed amount by way of compensation to the girl’s father and the compensation is one heifer.” Custody of the infant was restored to his lawful mother, compensation for expenses incurred in maternity including clothing and transport was rejected and the defendant was ordered to pay the costs of the suit. In this case Luhya customary law applied only in respect to the compensation for pregnancy and not for breach of marriage because it was not provided for in any Luhya customary laws.
PETER MARK GERSHOM OUMA v JAGAM S/O WAREGA AND LUBALO WAREGA AND OTHERS
In this case the appellant filed a suit in the High Court against several defendants who are registered proprietors of land in Siaya District in the capacity of ‘guardian and heir’ of one Musumu, who died in October 1978. The appellant prayed to the court for a declaration that Musumu is entitled to a share in the registered land as the eldest son of the original pre-registration owner and that the defendants be ordered to ‘give him’ his share in the land. Musumu had died inestate and the appellant claimed that he was heir apparent by reason of his guardianship. Musumu had not left behind any dependants. The appellant had not applied or been awarded letters of administration. He brought the suit in a representative capacity. The appellant told the court that he wanted an unspecified portion of the land given to him personally by the deceased. The judge dismissed the case because the plaint did not disclose a cause for action on the grounds that even if the appellant was a guardian or trustee of the deceased Musumu during his lifetime, the so-called appointement ceased upon his death; and also because the appellant had no grant of representation to Musumu’s estate. The court held that even if the appellant was a ‘guardian’ within the meaning of that term in section 4 of the Registered Land Act, it does not follow that he is, as he claims Musumu’s heir. Even if he was the heir he had no standing to represent the deceased’s estate as he was not the executor, administrator or legal representative, with the authority to claim and enforce on behalf of that estate. The plaint disclosed no cause of action. The court ordered that it be dismissed with costs.
This case is an example where customary law did not apply. This is to effect that it was superseded by legislation, i.e. the Registered Land Act which provided that being a guardian does not equate one to be an heir, administrator, executor or legal representative.
ESTHER CHEKUAUI V CHEPNGENO KOBOT CHEBET AND JOHANAH KIPSANG
The issue in this case was the custody of children following a divorce. It was a fact that the first two children were born during the subsistence of the legal marriage between Esther and Chepngeno. The marriage was between two women. The natural father during the marriage was not recognized. The children were known to be of the woman who pays dowry. The first child Chebet got married to an individual who paid dowry to her mother and Johanah the present of husband of her mother. The marriage had been dissolved and the children born after the first two were born during the susbsistence of the legal marriage. There was no evidence that dowry was returned. It was difficult to order custody of the first two children to go or commit them to Esther. The dowry however had to be ordered paid to her as is customary in the Nandi community. The court held that the marriage was acceptable and dowry was paid according to the contractual nature of the marriage. The plaintiff was to claim the dowry paid to the respondent with costs accruing to her. This was another interesting case in which custom overruled what through practice may be deemed to be abuse and indeed repugnant to natural justice. However since this was a practice recognized by the entire Nandi community, it conformed to the constitution, the plaintiff and the respondent were guided, subject and affected by it, the courts would apply Nandi customary law.
Under Kenya’s new Constitution there are currently four levels of Courts in Kenya: Magistrates’ Courts and Kadhi’s Court, a High Court, the Court of Appeal and the Supreme Court..
The colonial-era legislation relating to the application of Islamic customary law has been retained. The Acts in force (Mohammedan Marriage and Divorce Registration Act 1906, Mohammedan Marriage, Divorce and Succession Act 1920 and Kadhis’ Courts Act 1967) give acknowledgment to marriages celebrated under Islamic law, provide for the registering of Muslim marriages and divorces, outline the authority and procedure of Kadhis’ Courts and instruct the use of the rules of Islamic law pertinent to the parties involved. The Kadhis’ Courts have been established by the Kadhis’ Court Act (Cap. 11), which is based on provisions of Section 170 of the Constitution of Kenya which provides that ‘There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament.’
African customary law is the law of small-scale Kenyan communities. In Kenya there are as many customary laws as there are tribal communities. There are currently no customary or traditional Courts in Kenya however, the nation’s Courts use the customary law of any particular tribal group as a guide in civil cases so long as it does not conflict with statutory law, that the parties involved are either guided by, subject to, or affected by it, that it has been practiced since time immemorial and is not repugnant to both justice and morality. The application of these laws is done most often in cases that involve marriage, death and inheritance issues in which there is an previous contract founded in customary law. Individuals choose between national and customary law when entering into marriages or other social contracts. Subsequently, the Courts will determine which laws re to be used to enforce such a contract. The Constitution also expressly stipulates that in relation to the use of land, Kenyan customary law is to be respected unless the law is repugnant or inconsistent with any written laws. As Kenya moves forward, with regards to any future developments, it remains to be seen whether the modernization of African society and the influence of a more exposed younger generation will finally tip the scales towards an exercise in pure modernism rather than tradition and custom.
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