1 January 1931
1 January 1986
Silvano Melea Otieno (1931 – 20 December 1986) — also known as S.M Otieno and Silvanus Melea Otieno — was a leading criminal lawyer in Nairobi whose death gave rise to a significant legal controversy regarding the tension between customary and common law in Kenya.
Otieno was born at Nyalgunga, Nyamila village, Siaya, in Nyanza Province of western Kenya.
After his death, he became a cause célèbre in Kenya due to an action fought in an appeal court over the disposition of his body. He had been a Luo of the Umira Kager clan of Nyanza Province, but had married a Kikuyu woman (Virginia Wambui Waiyaki Otieno), sister of the then Foreign Minister of Kenya. She claimed that he had wanted to be buried at his farm at Ngong on the outskirts of Nairobi. His family claimed the body themselves asserting longstanding tribal custom.
Both husband and wife had been highly educated Kenyans who had lived their lives largely independent of the old ethnic norms. The case was seen as a test case and exemplar of the debate between customary (indigenous, ethnic, traditional) law as against the statuary (common) law that had been imposed in Africa during the colonial period and partially retained after independence. It emerged that ethnic interests still prevailed in Kenyan family and inheritance law. the Court of Appeals ruled that when there was conflict between common law and customary law, the later is given precedent. They declared that the courts of Kenya are guided by African customary law provided that such laws are “not repugnant to justice and morality”. And the judges concluded that the advocate for Mrs Otieno had failed to demonstrate that traditional Luo burial customs were opposed to justice or morality. In the end the Nairobi All Saints Cathedral refused to hold the funeral service at the cathedral as the clan had desired. Mr Otieno was finally buried at Nyamila on 23 May 1987.