Re Otieno, 15 May 1987
Annual Review of Population Law 14: 137
1987
ISSN/ISBN: 0364-3417 PMID: 12346618 Document Number: 383830
The conflict in this case was over who had the right to bury a deceased lawyer, his widow, or his clan. The widow wanted to bury him at their family home near Nairobi, noting that the couple had been married under the British-imported Marriage Act and claiming that they were cosmopolitan and rejected custom; whereas the clan wanted to bury him in the land of its ancestors near Lake Victoria, arguing that customary law should prevail. After several appeals, the Court of Appeal held that no written or common law applied to the case and thus that customary law should be applied. In particular, it found that a wife had no right to bury her husband under British common law. It also rejected a claim of sex discrimination and ruled that burial was an exception to any anti-discrimination clause contained in the Kenya Constitution.