Legislating over the dead: revisiting the s. M. Otieno case

Abstract

Death is the end of life. More than this, however, it is (especially in Africa) a rite of passage. Unfortunately, in spite of its significance in the African context, it remains to be (at least in Kenya) a matter that brings along uncertainty especially where burial conflicts arise. Such uncertainty results from the inadequate burial legislation. Regrettably, courts faced with questions of burial conflicts have not resolved them in a uniform manner and at times have wrongly applied common law and African customary law in an attempt to resolve such disputes. Consequently, the precedents developed by the courts have been insecure and unpredictable.