Burial Feuds and Complexities

lawyer SM Otieno

Photo/FILE ”He was a domineering, theatrical presence in Nairobi courtrooms, adept at making fools of ill-prepared Kenyan police who appeared as witnesses for the prosecution.” Journalist Blaine Harden on celebrated lawyer SM Otieno (above), whose remains were buried 154 days after his death.

By DN2 TEAM dn2@ke.nationmedia.com, Posted  Sunday, June 19 2011 at 10:43

Of all the burial disputes that have made headlines in Kenya, few can hold a candle to the S.M. Otieno case, which remains the most quoted and memorable. Books and academic dissertations have been fleshed from it.

In the sensational case that followed lawyer S.M. Otieno’s death in 1986, a Luo spokesman, a philosopher, a medicine man, assorted kin and witnesses, and a 76-year-old gravedigger — who was interviewed in a hospital bed — were called to explain, under oath, what it meant to be an African.

American journalist Blaine Harden writes in his 1991 book, Africa: Dispatches From a Fragile Continent,that prominent Nairobi criminal lawyer S.M. Otieno was a thoroughly modern African.

“A tall silver haired lawyer, he made his reputation defending criminals. He was a domineering, theatrical presence in Nairobi courtrooms, adept at making fools of ill-prepared Kenyan police who appeared as witnesses for the prosecution.”

Otieno married Ms Virginia Wambui, an alumnus of Tengeru College, Tanzania, where she studied political science. She came from a prominent family.

Harden claims that she used to brag that, “she and her husband were the first Africans with the money and the gall to move in among the whites.”

The Otienos, then residents of the affluent “horsey” suburb of Lang’ata, the “neighbourhood of the children and grandchildren of colonial British settlers,” notes Harden, where Otieno watched episodes of legendary fictional lawyer Perry Mason on video and on the weekends he puttered around at his gentleman’s farm — a six-acre spread in Upper Matasia on the Ngong Hills.

Indeed, S.M. Otieno was in the money, having taken his brood of 15 children to colleges in America and Europe.

At Bomas of Kenya, which he was a patron, was the “S.M. Otieno Corner” from here he swilled expensive whiskey most evenings.

“He salted bar room banter with quotations from Shakespeare and Shaw,” Harden, the foreign correspondent for the Washington Post at the time, continues, adding that Otieno suffered a thoroughly modern ailment— hypertension.

While tending his goats on his farm, Otieno was taken ill and died. Heart failure, doctors at Nairobi Hospital said that Saturday, December 20, 1986 — the year Swedish Prime Minister Olof Palme was assassinated on his way home from the cinema.

The Daily Nation reported, in a small front-page story, that a “prominent Nairobi advocate has died.” Wambui Otieno (now Wambui Otieno-Mbugua) announced that funeral arrangements would be announced later.

“Her husband’s death,” writes Harden, “ignited a family and legal feud that exploded into an African spectacle.”

S.M. Otieno’s body would be guarded by police for almost half a year at the City Mortuary.

The resulting burial case unearthed one grave issue: “Should an African be compelled, in death, to comply with tribal customs he denounced while alive?”

S.M. Otieno, a Luo, had married a Kikuyu in 1963 when inter-tribal marriages were rare and scandalous.

The Luo Council of Elders did not approve of Otieno’s choice of bride. To quote Harden, “She was rich, college- educated, well connected, sexually experienced, politically ambitious, aggressive, disputatious, and — compounding all her flaws — Kikuyu.”

The two communities had harboured mutual prejudices against each other. But Silvanus Melea Otieno “ignored the colonially brewed bad blood” and married Wambui.

No member of his family attended the wedding. The bride’s family were not ululating either. But S.M. Otieno possessed education, ambition, and prospects and “her kin swallowed their pride and attended the wedding.”

Wambui was 26 with four children, already. Otieno was born into the Umira Kager clan in Nyalgunga, but he told Wambui “Our clan begins with us” and he did not care two hoots what the Luo liked.

A year before his death, Otieno had intimated to Wambui, his children, and a dozen friends that when he became “was”, he wished to be buried on his Ngong farm since to be buried in Luoland “is to throw me away.”

But after his death, his brother, Joash Ochieng’ Ougo, and Omolo Siranga, the spokesman for the Umira Kager clan, demanded his body, insisting that once a prominent Luo died, his body had to be buried in his village. After all, the clan owned the body.

The Umira Kager clan hired lawyer Richard Otieno Kwach, later Justice Kwach, who explained that the Luo have a great deal of reverence for the dead.

Wambui left instructions that no one was to view her husband’s body without her permission. She had a grave dug at their home in Upper Matasia.

The clan dug one at Nyalgunga, Otieno’s rural home. Both parties arranged funerals on the same day. Court injunctions, however, saw both burials cancelled.

The sensational court battle that ensued dragged on for five months and kept tongues wagging. All the dailies carried verbatim court transcripts. It was a war of tradition against modernity.

Otieno’s brother argued that if S.M. was not buried “at home”, his angry spirit would haunt him and his clansmen would spit on him.

Harden, however, observes that it was more than just a demand for the body, “They (Luo) wanted something they never had since Kenya’s independence: a public, decisive, humiliation of the Kikuyu. The courtroom was a proxy battlefield for tribal war.”

But Wambui, whose gusty 1998 bio-peek, Mau Mau’s Daughter: A Life History, recounts how she was detained without trial for three-and-a-half years in Lamu by the colonialists during the independence struggle, was not taking the battle lying down.

After all, her father, Tairus Munyua Waiyaki, the most prominent court official in colonial Kenya, is the one who had invited S.M. Otieno to work as an interpreter in Kenya’s High Court in 1951.

That was how the two met — when Wambui visited her father at the courthouse in Nairobi. But Otieno won a scholarship to study law in Bombay. He was out of the country for six years. They met again in 1961.

S.M. Otieno loved children. They had five besides the four Wambui had (three with another man from Nyanza her father had rejected), besides adopting six others.

Wambui declined bride price, saying she never wanted to become the property of Otieno’s clan. Not Umira Kager.

Judge Frank Shields saw the burial dispute Wambui’s way and ruled that the clan’s case was “neither strong nor compelling” as he found nothing in Kenyan law granting burial rights from representatives of a dead man’s tribe.

Lawyer Kwach contested the ruling as young men surrounded the City Mortuary, stones in hand. A three-judge panel headed by judges Samuel E.O. Bosire, overturned Mr Justice Shield’s ruling.

Lawyer John Khaminwa, an expert in family and criminal law (and married from outside his community) represented Wambui. After the three-week appeal case was over, Mr Justice Bosire delivered his 32-page verdict on Friday, February 13, 1987.

He ruled that the justification for judicial interference in tribal burial disputes was “only if they are repugnant to justice and morality.” Mr Justice Bosire found nothing repugnant with Luo burial customs.

With clenched teeth, Wambui Otieno, sporting a black silk dress and matching headgear, stormed out of the court through a back door to a waiting car.

She appealed the ruling, but after another two-and-a-half months, the judges ruled that S.M. Otieno’s “urban lifestyle” did not exempt him from Luo customs.

As mourners sang, We are marching to Zion, S.M. Otieno’s 55-year-old body, dressed in a dark pin-striped suit, white shirt minus tie, was buried in a glass-sided mahogany coffin, 154 days after his death.

In July 2003, Wambui Otieno rose to national prominence after her controversial civil marriage to stonemason Peter Mbugua, 42 years her junior. Eight years later they solemnised their union at St Andrew’s Church, Nairobi.

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QUEEN JANE (JANE NYAMBURA)

The death of local benga songbird Queen Jane (Jane Nyambura) last year was followed by a burial dispute involving her family and James Kariuki, who went to court in July 2010, seeking to bury her.

Kariuki said he married Nyambura under Kikuyu customary law and solemnised the marriage in a Christian wedding in June 2001.

He wanted her buried at his Makwa village home in Gatundu North. The family wanted her laid to rest at Mugoiri village, Murang’a District, where she had been born 45 years earlier.

The family denied that Queen Jane, who died of meningitis, was married to Kariuki, who produced a video of their wedding in Ruiru.

But Queen Jane’s sister, Ejidiah Wanja, claimed that the video was a stage managed play starring 15 “cast members” who had been paid Sh5,000 for their services.

The sister, popularly known as Lady Wanja in music circles, could not produce the script nor explain whether her mother, Teresia Wangeci, was also part of the “cast.”

In the end, Thika senior resident magistrate Barbara Owino ruled that Kariuki could not bury the deceased as the pastor who presided over the wedding, J.J. Gitahi, was not registered to conduct such a ceremony.

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JOSHUA OKUTHE

The bulk of burial disputes involve bodies lying in the mortuary. But in the case of sports administrator Joshua Okuthe, there was no body.

Ruth Florence Okuthe, his wife, cremated the 62-year-old on July 9, 2009, four days after his death.

Zawadi Hadija Issa claimed that she had children with Okuthe, and his sister, Deborah Odhiambo, obtained a court order to stop the cremation, which the clan said was “uncultural, inhuman, and disastrous.”

But it was too late. Ruth had Okuthe cremated at the Lang’ata Crematorium as the two sought court orders in the afternoon.

His family buried an empty coffin behind his bedroom in Tamu, Muhoroni District, since he had been cremated according to his wishes.

The same thing happened in the case of Moi-era politician Peter Habenga Okondo, who died in August 1996.

Busloads of villagers arrived in Nairobi, only to learn that his white wife had had the body cremated.

WAMWERE KURIA

For three-and-a-half-years, the body of the father of former Subukia MP Koigi wa Wamwere, Wamwere Kuria, lay at the Nakuru Municipal Mortuary as his two sons languished in different prisons.

It was not until Koigi, his brother Kuria, and two other close relatives were released that the body would finally be interred, insisted the family.

Attempts by the mortuary management to dispose of the body because it had overstayed at the facility failed as the court ruled in favour of the family.

“The mortuary’s management moved to court several times to seek permission to dispose of the body but lawyer Mirugi Kariuki heard about it and did everything possible to ensure that my father’s remains were not disrespected,” recalls Koigi Wamwere.

“It was an expensive but worthy cause. Even if they had buried our father in our absence, we would have exhumed the remains after leaving jail and buried them again to give us the satisfaction that we had given our old man a much deserved decent send off,” he says.

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ROBERT NAPUNYI WANGILA

When in 1988 Robert Napunyi Wangila became the first African to win an Olympic gold in the boxing ring, he was instantly feted as a national hero. Every young boxer wanted to emulate his achievement.

After his Olympic gold, Wangila turned to professional boxing in 1989 and fared well and although he probably did not make as much money, he had a decent career until July 24, 1994 when he fought David Gonzales in Las Vegas.

He was beaten so badly that he lost consciousness and slipped into a coma. Some 36 hours later, was pronounced dead. A glittering career and future was flushed down the drain.

His death opened gates for court battles, with two groups claiming his body while his widow flashed out a will in which the boxer had stated that he wanted to be buried in Nairobi as a Muslim.

Matters were complicated further when his widow, Grace Akinyi, claimed that the boxer had told her that his father hailed from Busia and not Kisii, as his mother, Eunice Moraa Mabeche, had insisted.

With all this confusion, newspapers flashed headlines: “Who sired Napunyi?” When his body arrived, a group from Busia went to court, demanding to be accorded the right to bury the body.

Another led by Wangila’s mother alongside her husband John Mabeche and a Gabriel Kanyimbo from Kisii claimed to be the rightful parents of Wangila, while the Muslims too joined the fray.

Speaking to journalists, Akinyi had said: “I would love to see my late husband accorded a hero’s burial. He was a national figure.

“That is the reason he preferred (to be buried in) Nairobi. I would like him to be remembered for the glory he brought to Kenya.” The will was her only weapon.

But according to Moraa, Wangila was born to Gabriel Kanyimbo of Bonchari in Kisii. She said Kanyimbo had built an egesa (a hut) for Wangila at his home, according to Kisii tradition even before he died.

Lawyer John Khaminwa for the Busia group, produced a photograph of a Mr Obuke, who was said to have sired the boxer, but insisted that she knew nobody by that name and was even ready to swear under oath.

While Kenyans had known the boxer as Robert Wangila Napunyi, his mother disowned the names when they appeared on the death certificate. “My son was Robert Ang’ira and not Robert Napunyi Wangila, as indicated on the death certificate.”

Ultimately, both the Busia and Kisii groups lost the case and Wangila was buried in Nairobi under Islamic rites at the Kariokor Muslim Cemetery.

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VERONICA JULIAN AUMA

One-time district commissioner Veronica Julian Auma Aoko’s remains were interred eight months after her death as her in-laws and siblings fought over her final resting place.

Six months after the burial, the matter had not rested. Two months ago, her brother, Charles Onyango Oduke, moved to court seeking orders to compel Aoko’s father-in-law to reimburse up to half-a-million shillings he claimed to have spent on her burial.

Aoko died in a road accident on September 10, 2009. Her father-in-law, Samuel Onindo Wambi, has objected to the application through his lawyer Cleveland Otieno, stating that both parties were to share only the cost of the mortuary bill and that each party was to foot its cost of the suit.

Onyango presented to court Aoko’s funeral expenses that amounted to Sh1.1 million. The breakdown had 32 items, including funeral programme listed to have cost Sh60,000, money used to print T-shirts, and airtime used during the planning of the funeral.

He claimed that the defendants failed not only to join them in taking charge of the body, as the court directed, but also failed to make financial contributions for the funeral expenses.

However, Otieno termed the suit an abuse of the court process as there was no demand letter from those who offered services during the burial and its preparation.

“You did not prepare a funeral programme, the programme you have presented was prepared by the government, as indicated therein. Where is the mortuary demand letter and the receipt?” he demanded.

He told the court that the government paid the mortuary bill and the cost of the funeral programme, hence Aoko’s brother had no business demanding reimbursement for money that was never used.

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CHRISTOPHER MURIITHI MBATIA

Disputes over place of burial for kin have resulted in bodies lying at the Nyeri Provincial General Hospital, some for more than a year.

According to mortuary attendants, 10 bodies are lying at the mortuary after feuds among either the children or widows over inheritance.

The oldest body at the hospital’s mortuary has been there for 497 days, or a year and slightly over four months. Christopher Muriithi Mbatia’s body is listed as having been received on December 25, 2009.

A court order obtained by one of his children is said to have stopped the burial. Unconfirmed reports indicated that the children are feuding over the burial place.

In another case involving the family of David Thuku from Nyeri, his first wife and three children, a son and two daughters, issued the mortuary with a letter from the Mweiga sub-location assistant chief indicating that they were the only ones to be allowed access to the body.

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NORAH KWAMBOKA


The nurse at the Coast General Hospital died on October 9, 2010. Her relatives blocked her husband, Peter Oganga, from burying the body on grounds that they did not recognise him as her spouse.

Court granted temporary orders blocking the burial. On March 15, 2011, a court finally pronounced Peter the rightful husband of Kwamboka, therefore giving him the right to bury her remains.

SAMUEL WANJIRU

In most fights over a body, there are usually two sides fighting over who has the right to bury the remains, but with four parties battling it out, the bar was raised in Wanjiru’s matter.
Wanjiru’s mother, Hannah Wanjiru, was the first one to move to court to stop her son’s wife, Terezah Njeri, from making burial arrangements or interring his remains.

A pregnant woman, Judy Wambui, also claiming to be his wife, also sought legal redress and involvement in the burial arrangements.

She asked the court to stop the two, Wanjiru’s mother and Njeri (in spite of the bad blood between them) from burying her alleged husband.

When Wambui’s case was filed before Justice Anyara Emukule, he loudly wondered how many more girls would crawl out of the woodwork to file similar cases.

Eventually, the judge ruled that there was no loss to be suffered to both the living and the dead and that it was convenient to bury the body.

As the flowers on Samuel Kamau Wanjiru’s grave wither, his body goes on record as one of the most fought over, with three parties suing separately for custody and burial.

Of course there was the fourth party, his widow, Terezah Njeri, who was a respondent in all the three cases.

Reports by Kamau Mutunga, Bob Odalo, Wanjiru Macharia, John Njagi, Odindo Ayieko, Philip Muyanga, and Lorraine Anyango

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2 Comments (+add yours?)

  1. Wanjiku Wambui
    Jan 14, 2012 @ 03:44:42

    Thank you for this article. What was the holding for the S. M case, and where can I get it online?

    Like

    Reply

  2. allan odhiambo wuod kager umira
    Aug 24, 2015 @ 06:11:27

    the umira kager clan was justified to bury sm in nyalgunga

    Like

    Reply

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