Man in inheritance case to be buried after six months in mortuary

A 98-year-old man whose body has been lying in a mortuary for the past six months following a burial dispute will finally be laid to rest following a ruling by a Kisii court.

The court ordered the burial of Jackton Ocharo, a one-time official of the defunct Kisii municipal council, noting that it was time to let the man rest in peace.

A 50-year-old woman who claimed she was married to the man obtained a court injunction restraining his eight children from burying their father at Mokomoni Settlement Scheme in Nyamira County.

In January 2022, the court barred Prof Robinson Ocharo and his seven siblings from burying their father until Ms Jane Nyaboke’s petition was determined.

In her application, Ms Nyaboke alleged that the late Ocharo had told her that she should take charge of all burial arrangements as the only surviving widow if he died.

Ms Nyaboke asked the court to “issue an injunction restraining the defendants, the defendants’ family members, their agents, servants, or assignees from taking the body of Jackton Ocharo from the mortuary … until the hearing of the suit".

She asked the court to order police commanders at the Kisii and or Nyamira police stations to provide security and assist in the implementation of the court’s orders.

Only surviving widow

Ms Nyaboke claimed she was the only surviving widow of the late Ocharo, who died on January 4.

She alleged that the late Ocharo’s children had excluded her from burial arrangements for the man she claimed was her husband.

However, the court determined that Ms Nyaboke, who had not provided any evidence of her alleged marriage to the late Ocharo, wanted to inherit the property he left behind.

“I must state at this point that having perused the pleadings herein, the central issue seems to be the properties of the deceased and the issue has been clothed as a burial dispute,” observed Principal Magistrate Stephen Onjoro in his judgment.

The magistrate said he agreed with the respondents that the applicant had not provided any evidence to prove the alleged marriage existed.

“As rightly pointed out by the respondents, there is no single proof of any customary marriage between the deceased and the applicant in the pleadings. Further, there is no proof of oath of any independent witness of the said marriage or even the alleged wishes of the deceased,” Mr Onjoro said.

The magistrate ruled that the petitioner was not married to the late Ocharo and was using the court to try to benefit from his estate. 

The court, which had issued an injunction that led to the late Ocharo’s body lying in the morgue for the past six months, had changed its tune.

“At this point it would be a tragedy not to let the deceased rest in peace based on the unsupported alleged wishes from the man. No witness and no document to the effect of the deceased’s wishes or alleged customary marriage have been filed,” the court ruled.

The court said the law of succession has provisions on how to distribute a deceased person’s estate once parties prove that they are beneficiaries.

The magistrate said: “I do not find any prima facie case established by the applicant and it would further be an exercise in futility to delve into other grounds for grant of an injunction.”

The burial of Mzee Ocharo has been set for July 1.

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