CASE BRIEF.

REPUBLIC OF KENYA
IN THE HIGH COURT AT
NAIROBI
CIVIL CASE NO 4873 OF
1986
VIRGINIA
EDITH WAMBUI
OTIENO……………………
…PLAINTIFF
VERSUS
JOASH
OCHIENG OUGO
OMOLLO
SIRANGA……………………
……………………
DEFENDANTS
CASE BRIEF.
REPUBLIC OF KENYA
IN THE HIGH COURT AT
NAIROBI
CIVIL CASE NO 4873 OF
1986
VIRGINIA
EDITH WAMBUI
OTIENO……………………
…PLAINTIFF
VERSUS
JOASH
OCHIENG OUGO
 OMOLLO
SIRANGA……………………
……………………
DEFENDANTS
CASE BRIEF.
REPUBLIC OF KENYA
IN THE HIGH COURT AT
NAIROBI
CIVIL CASE NO 4873 OF
1986
VIRGINIA
EDITH WAMBUI
OTIENO……………………
…PLAINTIFF
VERSUS
 JOASH
OCHIENG OUGO
OMOLLO
SIRANGA……………………
……………………
DEFENDANTS
CASE BRIEF.
REPUBLIC OF KENYA
IN THE HIGH COURT AT
NAIROBI
CIVIL CASE NO 4873 OF
1986
VIRGINIA
EDITH WAMBUI
OTIENO……………………
…PLAINTIFF
VERSUS
JOASH
OCHIENG OUGO
OMOLLO
SIRANGA……………………
……………………
DEFENDANTS
CASE BRIEF.
REPUBLIC OF KENYA
IN THE HIGH COURT AT
NAIROBI
CIVIL CASE NO 4873 OF
1986
 VIRGINIA
EDITH WAMBUI
OTIENO……………………
…PLAINTIFF
VERSUS
JOASH
OCHIENG OUGO
OMOLLO
SIRANGA……………………
……………………
DEFENDANTS
CASE BRIEF.

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CIVIL CASE NO 4873 OF 1986

VIRGINIA EDITH WAMBUI OTIENO………………………PLAINTIFF

VERSUS

JOASH OCHIENG OUGO

OMOLLO SIRANGA………………………………………… DEFENDANTS

Statement of facts.
Silvano Melea Otieno a
prominent Nairobi
criminal lawyer, died on
th
or about 20
December,
1986 either upon arrival
at the Nairobi Hospital
or on the way to that
hospital. He died of
Coronary heart disease.
The deceased(S M
Otieno) died intestate
and immediately upon
his death, his widow
Wambui
Otieno embarked on
making burial
arrangements to bury
her husband in Upper
Matasia Ngong
in Kajiado district as it
was then.
However, the husband’s
clan, Umira Kager which
the defendants were a
part of wanted to bury
his body in Nyamila
village, Nyalgunga sub-
location, Siaya district,
which was his ancestral
home in accordance
with the Luo customs.
They could not reach to
a decision by
themselves or
rather agree as to his
burial place hence this
suit.
th
The suit was filed on 30
December, 1986 by the
plaintiff against the
defendants seeking a
declaration that she is
the person entitled to
claim the body of the
deceased and to
perform a
burial ceremony at
Matasia where the
deceased owned a
farm in preference
to both the
defendants.
Silvano Melea Otieno a prominent Nairobi criminal lawyer, died on or about 20th December, 1986
either upon arrival at the Nairobi Hospital or on the way to that hospital. He died of Coronary heart
disease.

The deceased (S M Otieno) died intestate and immediately upon his death, his widow Wambui
Otieno embarked on making burial arrangements to bury her husband in Upper Matasia Ngongin
Kajiado district as it was then. However, the husband’s clan, Umira Kager which the defendants were
a part of wanted to bury his body in Nyamila village, Nyalgunga sub-location, Siaya district, which
was his ancestral home in accordance with the Luo customs. They could not reach to a decision by
themselves or rather agree as to his burial place hence this suit.

The suit was filed on 30th December, 1986 by the plaintiff against the defendants seeking a
declaration that she is the person entitled to claim the body of the deceased and to perform a burial
ceremony at Matasia where the deceased owned a farm in preference to both the
defendants.

Procedural history.

The matter was first

heard at the High Court
by way of chamber
summons and the
plaintiff’s
prayer was that both
the defendants and the
medical officer of health
in charge of the City
Mortuary be restrained
by injunction from either
removing the
deceased’s body or
disposing of it
until the final
determination of the suit
The matter was first heard at the High Court by way of chamber summons and the plaintiff’s prayer
was that both the defendants and the medical officer of health in charge of the City Mortuary be
restrained by injunction from either removing the deceased’s body or disposing of it until the final
determination of the suit. The application was heard and granted ex parte, by Justice Shields J on the
same day it was filed that is 30th December 1986. The copies of the plaint and chamber summons
were served on thedefendants on the same day they were filed and as a consequence, the very next
day both thedefendants, through their advocates; Kwach, Ndung’u and Njoroge did file a
counterclaim together with a chamber summons expressed to be brought. Among the prayers
sought in the chamber summons, was an order to discharge, vary or set aside the ex parte order
made in favour of the plaintiff; an injunction directed at the plaintiff, her servants or agents
otherwise howsoever, from burying the deceased anywhere other than Nyalgunga, until the
hearing of this suit or further orders of the court and; costs. The application was heard on the same
day it was filed also by Justice Shields who dismissed it with costs to the plaintiff then as respondent.
The defendants were dissatisfied so they filed a notice and petition of appeal to the Court of Appeal
challenging the decision of Shields J. The Court of Appeal heard and determined the appellants’ case
and their appeal was allowed. The court then proceeded to order that the suit be heard by a judge
other than Shields and it was to be a trial and not a retrial because there was no trial of the suit by
the High Court and it also made orders in terms of prayers in the defendants’ chamber summons
which had been dismissed. The case was then instituted at the High Court on January 21st 1987 by
the plaintiff who must have become apprehensive that the defendants would go to City
Mortuary to claim the deceased’s body following the decision that was held at the Court of
Appeal

Issues.

1. Did the deceased express his wishes or give direction as to where he should be buried”

2. If so, (a) to whom” (b) when” (c) where”

3. Did the meeting of 4th May 1981 discuss the question of burial of the deceased at plot

no Central Alego/ Nyalgunga/1983"

4. (a) Do the defendants, jointly and severally have a cause of action against the plaintiff"

(b) If they have, what is the cause of action"

5. What, if any, is the Luo customary law in regard to the burial of the deceased"

6. Was the deceased subject to the Luo customary law"

7. What law applied to the deceased in regard to the burial of his body"

8. Where did the deceased and the plaintiff establish their matrimonial home"

9. Who is entitled to bury the body of the deceased" In other words to whom does the duty

of burying or disposing of the body of the deceased fall"

10. Is the plaintiff entitled to the prayers in her plaint"

11. Are the defendants entitled to the prayers in their counterclaim"

12. Who is to bear the costs of this suit"

13. Did the plaintiff and the deceased establish a matrimonial home at Upper Matasia in

Ngong"

14. By reason of the fact that the deceased lived away from his ancestral home for a

considerable period of time did he thereby cease to be governed by or subject to the Luo

customary law"

15. Whether Luo customary law relating to burial generally is repugnant to justice and

morality or inconsistent with any written law.

The Court raised the above 15 issues but the main four that formed the basis of the case and

decision making are discussed below.

Holding.

1. What, if any is the Luo customary law in regard to the burial of the deceased”. The court

had earlier set out what the defendants said is the Luo customary law and tradition on

burials. No evidence was adduced to contradict and the court found no basis for finding

otherwise.

2. Whether the deceased was subject to Luo customary law. Yes. It was shown in the court

that the deceased did demonstrate that he did espouse Luo customs pertaining to matters

other than his marriage with the plaintiff.

3. What law applied to the deceased in regard to the burial of his body. Luo customary law.

The question was not whether or not the customs and traditions of the Luo are acceptable

to the plaintiff, rather, the issue is whether or not the deceased was subject to them. Yes.

4. Whether Luo customary law relating to burial generally is repugnant to justice and

morality or inconsistent with any written law. No. The court found no law with which the

customs conflict with written law or are repugnant to justice and morality

Reasoning/ Ratio Decidendi.

1. What, if any is the Luo customary law in regard to the burial of the deceased. The High

Court being bound by decision of the Court of Appeal held that there was no basis in this

matter for invoking Public Health Act or the Law of Succession Act as the issues which

arise in this suit concern burial. The judge researched on English authorities based on the

common law and which deal with burial but was unable to find any nor were any referred

to him. Those he could find were based on the English law with regard to administration

of estates which are irrelevant to this case. That then left the court with a personal law

being the customary law.

Analysis.
Under the repealed constitution, section 82 provided for non-discriminatory laws.

However, it is quite evident that women had hardly any rights than compared to present day. The

repealed constitution did not provide women with any forum as seen from section 82. Virginia

Edith Wambui Otieno’s case was a prejudicial matter and yet the outcome was as if it was

predetermined. This is evident by the very fact that back then when there was a conflict between

English Laws and Customary Laws, the Customary Laws should reign supreme. In light of the 2010
constitution, Article 27 which provides for Equality and Freedom from Discrimination, by virtue of
this Wambui Otieno would have had a stronger case if it would have

been heard under the new constitution. Furthermore, provisions of Article 27 read together with

those of Article 44 which provides for language and culture and Article 2 which provides for

supremacy of this constitution would have rendered the Luo customary law on burial repugnant

to justice and morality. This is because the wife of the deceased under Luo customs had no say

and the decision of the Umira Kager clan was final.

In Wambugi w/o Gatimu v Stephen Nyaga Kimani, a discriminatory custom that operated to bar

women from inheriting land was found not to be repugnant to ordinary notions of justice. Indeed,

the custom was held to be a salutary one as it ensured that the land remained in the family.

In Mbinga v Mbinga (2006), Lady Justice Joyce Khaminwa appealed to the principles of non-

discrimination enshrined in international treaties to which Kenya is signatory, namely

the

Universal Declaration of Human Rights (UDHR) and Convention on the elimination of all forms

of discrimination against women (CEDAW), to override a customary law that allowed

discrimination against married daughters in inheritance matters. She noted that the custom of

disinheriting daughters went against the current jurisprudence in international law, which was

making a concerted effort to ensure that there is no discrimination on grounds of gender.

The 2010 constitution brought more fairness and equity to the women and it is our belief that if

the case were to be heard under the new constitution the outcome would have been different.