Estate planning

Estate planning: why a burial clause is critical in wills


Thursday, August 24, 2023

Have you thought about where you will be buried when you die?

Have you thought about where you will be buried when you die? And who has the final say in burial rituals? Is he your husband or the sons of the clan?

Those cases will be dealt with by an appeals court in a dispute over the burial place of an elderly Casey who died in April this year.

It is a fight similar to the one she witnessed in 1986, pitting Wambui Otieno against the clan of her husband, Omeira Kajer, over the burial of Silvano Melia Otieno, popularly known as SM Otieno.

In this case, the widow wanted to bury the famous lawyer in Ngong, but the clan would hear none of that and insisted that Nyalgonga, in Sayaya, would be the deceased’s final resting place.

is reading: If the court chooses the burial site of the husband

After a court battle that lasted five months, the clan was able to achieve its goal.

“In consideration of Law’s customary law relating to burial, which as previously indicated is the applicable law in this matter, and in view of my earlier finding that the deceased expressed a wish to be buried on his death at Nyalgonga, I hereby ‘direct order and to order that the body of the deceased be delivered to Gwach Ochieng Ogo and Virginia Edith Wamboy Otieno jointly or to either of them for burial at Nyamila Village, Nyalgonga Sub-district, Siaya District,” Judge Samuel Bossier (Ret.) ruled on February 13, 1987.

Three decades later, the same scenario is repeated again. Naftali Ondri Ontoika’s body has been resting at Lee Funeral Home since June, accruing hundreds of thousands in storage fees.

As of June 12, 2023, the widow says, the morgue fee was Sh391,000. The daily morgue fee for preserving the body is Sh4,000, which means the amount is now close to Sh679,000 and still growing.

The fight pits his four brothers against the widow over whether to bury him in Pumachogi, Kisii Province, or Kamulu in Machakos Province.

The court has suspended plans to bury Mr. Onderi at his home in Kamulu pending an appeal by his brothers.

“While the option of exhumation is available, in our considered view it would be wiser to await the outcome of the appeal rather than subject the family to an exhumation and reburial,” Justice Helen Omondi, John Hakam Matefu and Mwaniki Gachuka.

Last month, the Supreme Court ruled in favor of the wife, Zippora Masisi Ondre, allowing her to collect the body for burial in Kamulu. The court also ruled that Casey’s burial rites must be applied.

Dead man’s word

But the brothers insisted that it was their brother’s wish that his remains be buried at Pumachoge and quickly appealed the Supreme Court’s ruling.

The burial ceremony, like other tribes in Africa, is the last respect paid to the dead body. The burial is usually done according to the customs and traditions of the Abagosi. When a married man dies, the corpse is supposed to be placed in the drawing-room on the left-hand side of the room for the night.

The body is removed from the house using the left door when the grave is ready in the morning, which is when the animals are outside the cowshed to graze.


Kenyans are slow to take the legal cover that a will provides. photo | stock struggle

customs and traditions

The brothers of the deceased told the court that just like the customs of Abagosi, their brother’s body should be carried into the house using one door and out through the other.

To this the widow and her eldest son retorted, saying that the Camullo house had similarly two doors and was in good condition, unlike the Pumachogi house. The son said his father never fixed it up because he never intended to live there.

The brothers further disputed this argument, arguing that Mr. Ondreye was the head of the Mugunde family and was even crowned as a José elder, bestowing blessings to contest the Pumachoge-Burabo constituency in the 2022 general election.

“There is no evidence that the wish of the deceased was to be buried in Kamulu. Therefore, it is in the public interest and in the interest of justice that the deceased be buried according to the customs of the Jossi community and not according to the wishes of his nuclear family, as decided by the Supreme Court.”

The Court of Appeal ordered the relatives to file the main appeal within 30 days and ordered the case to be included for hearing on a priority basis when the court appeals from the August recess.

Expensive and lengthy trials

On the other hand, burial disputes continue across Kenya, exposing families to costly and often lengthy court trials, not to mention the emotional toll.

However, says law scholar and family lawyer Ruth Odhiambo, the drama dissolves quickly if the deceased had the foresight to write a will stipulating his funeral and final resting place.

Unfortunately, despite similar high-profile burial disputes playing out in the open, year after year, Dr Odhiambo says Kenyans are slow to take the legal cover provided by a will, preferring to stick to traditional beliefs that avoid preparations for death.

“Writing a will is the surest way to avoid exposing your loved ones to unnecessary court battles,” she says, and advises that the document be clear about who has rights over the body.

“It is advisable, especially if you care for all your dependents and beneficiaries. So long as no one is disinherited, the wishes of the deceased should be respected.

False assumption

Most often, the law lecturer says, most people fighting over the body of the deceased engage in such court battles with the false assumption that winning gives them an automatic right to property left by the deceased’s spouse or relative.

Dr Odhiambo says this should never be the case, as a person’s burial and the distribution of their property are two different issues.

Most Kenyans hesitate to write a will for fear of the expense. However, Dr. Odhiambo says writing a will should not be an expensive affair; It all depends on the net worth of the property.

She says writing a will needs at least two witnesses, or more than two witnesses if one of the witnesses is a beneficiary.

is reading: The appetite for the earth suggests a looming conflict with burial traditions

As for where to keep the will, Dr. Odhiambo says you can deposit it with a lawyer, bank or trusted friend. One also needs to decide who reads the will to the beneficiaries.



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