Legislating over the dead: revisiting the s. M. Otieno case
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Authors
WAMBUA, MISHAEL MUSILI
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Publisher
Strathmore University
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.
Description
In many African cultures, death marks the beginning of a new type of existence: spirituality and ancestry.1 This renders it a critical occurrence in the lives of those whose doors it unlocks especially given the African context. Burial legislation (and/ or burial rights) is an area that has arguably been long bereft of secure and predictable jurisprudence at least in Kenya. Though burial conflicts are not new (nor are they about to go away) their adjudication seems to pose a challenge to the judiciary. A cursory glance at precedents developed by the judiciary reveals a non-uniform, unsecure and unpredictable mechanism of resolving burial conflicts. So much so that Abdullahi posits that by failing to develop cogent precedents, the judiciary lacks sound legal principles and policy considerations to employ in resolving burial conflicts.