Burying Okoth, the politics of individualism vs communalism

In this earlier post, we were reflecting on the 1986/7 saga pitting the Kager clan vs Wamboi Otieno over who should have control of the body of the deceased. In that particular case, the Court of Appeal granted the prayers of the clan, allowing them to inter the body of SM against the wishes of the bereaved wife.

We again find ourselves in almost a similar situation, albeit, with minor variations. The body of the late MP Kibra has already been cremated and so there is no contest on where it will lie. But there are certain similarities; like SM, Okoth was married to a non-Luo. Both were successful at their trades. Both lived their lives mainly in Nairobi.

The issue we have at hand is whether our bodies belong to us in death, and by extension to our nuclear family or whether the clan has a claim to the dead. Are we right, the urbane African, in demanding as part of dying wishes that we be granted private funeral, when like in the case of Ken OKoth, he led a public life? Do those who birthed us have a say in how we are disposed of? Since when we are dead we can’t do nothing, should we be the ones to determine how we will be sent off, who will be present or should this question be left to those who we have left behind to determine?

On a related matter, during nuptials, those who go to church say “until death do us part”, as part of their vows. What does this imply in the face of death? Should it not mean that death frees us of the obligations to the other? Can the society, in a sense, lay claim to this person who was yours by law, but is no longer?

Or is this, in a sense, the logical conclusion of the individualized lives we live today where Ubuntu- I am because we are- as was eloquently put by Cannon Mbiti?

So I think, I can ask these questions again?


  • Who owns the dead?
  • Can any person claim to exclusively own the dead?

Burying SM: The politics of Knowledge & the sociology of power in Africa

Is a Luo-centric book on the struggle- legal struggle- over the body of SM that played in the courts in 1986/87 for 155 days by Cohen D.W and Odhiambo E.S.A pitting one hand the Umira Kager clan and on the other the widow, the late Virginia Wambui Otieno. Maybe it is Luo-centric because at issue is Luo funerary procedures and a dead Luo. I am going ahead of myself!

In Dec of 1986, SM Otieno died. He had been married to Wambui Otieno. They lived in Nairobi. They had interests or is it rights on a property in Upper Matasia, Ngong’ area where witnesses said Otieno had indicated he would wish to be buried. The widow upon his death announced he would be buried in one of their properties in Nairobi. The brother and by extension, the clan would have none of it. As he died intestate, this struggle, the struggle over who should bury the dead body played out in both the high court and Kenya’s apex court at the time, the Court of Appeal.

I found shocking some of the arguments advanced by the counsel for Wambui that because her husband could recite Shakespeare, he was no longer a Luo or subject to the customs, especially burial customs. To this extent, I still think the colonial mission succeeded in ways that have yet to be investigated fully. The question of progress and modern is brought into sharp focus in this trial. And it has the hallmarks of missionary activity where the christian convert is seen to have progressed, modernized so to speak. And that is the argument the widow and her counsel put forward.

I find contradictions in the arguments of the counsel for the borrowed when they on one hand argue against a home (read Nyalgunga) burial while at the same time demanding for a home (read Upper Matasia) burial. For a consistent position, I think they would have argued, for a cemetery burial.

The counsel for the clan argued that a dead Luo must be buried next to the ancestors.  Their argument that culture dictated this and there would arise negative consequences to those involved if this wasn’t actualized.

Whilst the book by Cohen and Odhiambo is a riveting read, they are silent on so many issues. They don’t tell us much about the SM-Wamboi union. How many children did they have, how many did they adopt. They mention only in passing Wamboi’s other dalliances but not with who, except that they were ‘prominent Kenyans’.

They do not address in any meaningful way the undue influence from state house on the judiciary, nor the relationship between the clan and Ker Oginga Odinga or Odinga and SM’s family in a way that would make it easier for the reader to understand why he took the position he did.

To their credit, they ask very important questions such as why leading scholars on Luo culture and history like Bethwell Ogot and Prof S.H Ominde were not called by the defense for expert opinion. They opine the judges listened to the men, older men and in effect silenced Wambui and the women.

The book is a good exploration in the creation of and maintenance of culture and knowledge. It’s a riveting read that leaves one desiring more. In fact, it ends so abruptly. I felt there was more that needed to be said, what, I don’t know yet.

At the end, some of these questions come to mind

  1. Who owns the dead?
  2. Can any person claim to exclusively own the dead?
  3. What is the position of the woman with regard to a dead husband?
  4. Was the court right in their ruling when they sided with the clan?

The legal struggle, to me an observer far removed from the events, is a sign of failure first on the part of adults to adulting and of social systems. Had these been functional, the two families involved in this struggle would have arrived at a solution that satisfied both ends, besides SM was already dead. Why subject his body to such indignity.