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Court ruling that almost shook the Kenya’s civil rights

The death and burial of Silvano Melea Otieno, a Kenyan criminal lawyer of his style brought into the Kenyan traditional jurisprudence a case that lasted 6 months in the corridors of justice in 1986. He was born in a Luo village Nyamila Nyalguga in the current Siaya County in 1931. 20th December of 1986 went in record as a day Kenya had a date with English and African law. The death was less of the issue. The issue was the burial rights according to Luo Customary law. The wife, Virginia Wambui (1936-2011) from a Kikuyu community contested the burial on statutory and administrative law borrowed from the British traditions.

What was very interesting in this case was not inter-marriage in Kenya, it was whether African customary law would survive the judicial slaughter once and for all. The case has since set a clear precedent (case law) on burial rites when it comes to African customary law and English statutory law. Despite all the huge jurisprudence on the matter, Kenya’s legal system and jurisprudence traditions have been persistent on matters related to African customary law. However, the entire system is still more English statutory law than African law. Many modern judges are reluctant to deal with issues of African customary law in civil disputes due to ethnic divide and lack of strong literature on the jurisprudence and doctrine of African legal culture in Kenya.

There are revisits and some sporadic elements of African legal traditions and values in the constitution of 2010, marriage law and others but nothing emphatic on how to go about legal traditional values in Kenya. Modern law scholars in Kenya have lost interest in their own legal cultures embracing the borrowed English Common law. The case that involved Kenyan academic and scholars and high profiled honorable judges created great heat in the court proceedings than had ever seen in the Republic of Kenya.

The case did not oppose to inter-ethnic marriages in Kenya but raised questions of customs and practices. Today there are many more mixed marriages. If anything, many teenagers today fall in love across ethnic divides in Kenya. Issues of customary marriages are phasing out as many modern men and women prefer statutory or religious marriages based on the phenomenon of love other than cultures. The question of burial in the ancestral lands is also phasing out as many counties are re-considering communal Cemeteries for urban dwellers. However, the practice of ferrying the dead to the ancestral lands is still rampant among the Luos. There is a belief that in the cities people only own houses but not homes. A home is linked to the ancestral lands a concept that has a lot of value in the cultural heritages of the people of Kenya.

About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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