Rereading Burying SM as a ‘Social Reproduction Text’

Abstract

The lawyer Silvanus Otieno died in Nairobi in December 1986. His Luo relatives wished to bury him in his rural homeland of Siaya in accordance with what they held to be Luo custom. His wife, Wambui, who was Kikuyu, went to court to ask for permission to bury him at their urban home in Nairobi. The course of events can be briefly summarised as follows. On it becoming apparent, soon after his death, that his family and his clansmen differed as to the appropriate place to bury SM, as he was widely known, his widow sought an injunction in the High Court restraining the clan from removing his body from the Nairobi City Mortuary and a declaration that she was entitled to claim her husband’s body for burial at their farm in Ngong, near Nairobi. Her application succeeded. Upon the clan’s application, the Court of Appeal set aside the High Court ruling and ordered that the matter be set down for trial. The trial was conducted before Justice Bosire, who rendered his decision on Friday, 14 February 1987. He directed that the deceased’s body be handed over to the clan and the widow jointly or to either one separately, for burial in Siaya. The clan’s wishes were thus granted. Wambui appealed, the Court of Appeal delivering its judgment on 15 May 1987. It dismissed the appeal and ordered that SM be buried in Siaya in accordance with Luo custom. Commenting on the case, the author of a casebook on Kenyan customary law, Eugene Cotran, described the case as a landmark for customary law and in Kenyan legal history (Cotran 1989; for a discussion of the customary law aspects of the case see Manji 2002). In 1992, David William Cohen and E.S. Atieno Odhiambo published their study of the case under the title Burying SM: The Politics of Knowledge and the Sociology of Power in Kenya.