NAIROBI, Kenya, Sep 1 – A legal expert says the Umira Kager clan has no role to play in deciding where the late former Mau Mau freedom fighter Virginia Wambui Otieno will be buried.
Lawyer Shiro Mogeni who specialises in Family Law said the only person to decide where Wambui will be buried is her husband Peter Mbugua.
Ms Mogeni, who is a program officer at the Federation of Women Lawyers (FIDA), told Capital News that the values of the clan do not supersede the standards set by Article 4 of the Constitution since Wambui remarried after her husband SM Otieno died.
She said: “The fact that she is married and the form of her marriage is civil registered under the Attorney General then it is not subject to challenge apart from when in divorce proceedings.”
“Now that she has passed on the people of Nyalugunga (read the Umira Kager clan) are now barred from dictating proceedings. There is no application of customary law in terms of her burial because this is another marriage altogether and the form of marriage will guide the administration property and as well as burial,” she added.
Ms Mogeni further told Capital News that although the late Wambui had already dug a grave for herself in 1989, the law was only clear on administration of property but silent on granting the wishes in terms of disposal of the body.
“What she did by digging the grave is just but to make a wish, even if she had included it in a written will then it is still not applicable wholly. The will only covers the disposal of property but in terms of disposal of the body there is no legal procedure prescribed for that,” she said.
A brother in-law to the late Wambui, Joash Ougo Ochieng said on Wednesday evening that the Umira Kager clan in Siaya district was ready to receive the body of the late Mau Mau fighter for burial next to her late husband’s grave but only if Wambui’s children agreed to it.
He said that as far as the Luo tradition was concerned, the family and the Umira Kager clan believed that Wambui was their sister in-law since they had performed all the traditional wedding rites with the late SM Otieno.
However, Mr Ougo said that the family would skip the burial if her body is interred at the home of Peter Mbugua who she married nearly five years ago.
The grave Wambui prepared 22 years ago on a six acre piece of land in Matasia, Ngong is located next to her late husband’s mausoleum which contains a coffin but without the remains.
A commemorative inscription overlooking the grave dated December 20, 1989, reads: “I, Wambui Otieno, hereby declare that I shall be laid to rest in this enclosed ground when I eventually die to guard this memorial to my late husband SM, even in death.”
The late SM Otieno was buried in Nyalgunga, Nyamira village, in Siaya after a protracted legal battle between Wambui and the Umira Kager clan.
The late Wambui stirred debate in 2003 when she married stonemason Peter Mbugua who was then 42 years her junior. She passed on at the Nairobi Hospital on Tuesday while in the Intensive Care Unit.
Family members have indicated they plan to bury her next Thursday in Ngong, according to her wishes.