Burial rights and rites: safeguarding a Kenyan African widow’s position upon termination of a Christian marriage by death

Abstract

The absence of a clear legislative framework on burial that was decried by the Court of Appeal during the SM Otieno case persists over thirty years on. There has, however, been marked progress in reform of marriage laws following the promulgation of the 2010 constitution and the enactment of the family law statutes. The Marriage Act unbundles the different categories of marriages and the mode of terminating them along the contours of personal law. These contours are, however, not always maintained when it comes to termination of marriage through death. This article focusses on this inconsistency faced by widows in Christian marriages and makes a case for extension of the legal protection afforded to wives during the termination of marriage through divorce and nullification to termination through death, rather than default to automatic application of customary law for Christian widows.