Otieno v Ougo & another (No 2) [1987] KECA 79 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an exhumation, confirming courts preserve the disputed subject-matter until an appeal is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an interlocutory injunction should issue to preserve the body (subject-matter) pending the hearing and determination of the intended appeal
- 2.Whether the applicant should proceed expeditiously to prepare and lodge the record of the intended appeal
Key legal issues
#Whether an injunction should issue to preserve the subject-matter pending appeal
Yes. The established practice of the court is to grant an injunction preserving the subject-matter so the appeal is not rendered nugatory; the fact that the body could be preserved for two more months did not justify exhumation in the interim.
The court disposed of the application on the basis of its established practice, following Gheewala and Butt. Injunctive relief preserves the subject-matter of a dispute pending determination so that a successful appeal is not nugatory. As the body would remain preserved for another two months, no necessity to risk exhumation arose, and no special circumstances justified departing from the usual rule.
Duty of the applicant to expedite the appeal
The applicant, having obtained preservation orders, must move expeditiously to prepare and lodge the record of appeal; counsel undertook to do so within 28 days.
The respondents' counsel submitted that the applicant should proceed expeditiously to prepare and file the record of the intended appeal. The court agreed with this submission and accepted the applicant's counsel's offer to lodge the record within 28 days, coupling the preservation orders with an obligation to pursue the appeal without delay.
Legal principles established
#- The usual rule is that an interlocutory injunction is granted to preserve the subject-matter pending the hearing and determination of the action, so that the rights of an appellant are safeguarded and a successful appeal is not rendered nugatory.
Court orders
#- 1.Application allowed in terms of paragraphs 1 and 2 of the notice of motion
- 2.The body shall remain in the City Mortuary until further order of the court
- 3.No order as to costs
- 4.Applicant to lodge the record of appeal within 28 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Costs against the respondents
The court made no order as to costs.
Costs
No order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The usual rule is that an injunction is granted to preserve the subject-matter pending the hearing and the determination of the action so that the rights if any of an appellant are safeguarded to prevent the appeal, if successful, from being nugatory.
We allow the application and order in terms of paragraph 1 and 2 of the notice of motion. The body shall remain in the City Mortuary until further order of this court. No order as to costs.
There are no special circumstances which would cause us to decide differently because, fortunately, the body can be preserved for another two months or so and hence there is no necessity to risk exhumation.
Issues in the judgment
#The judgment does not state the case title, case number, or the parties' names; these fields have been inferred from the internal references to counsel (Mr Kwach, Mr Khaminwa) and the subject-matter.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ochido v Omedo (Civil Appeal 55 of 2020) [2026] KECA 1076 (KLR)[2026] KECA 1076 (KLR)29 May 2026
- Okun v Otwal (Environment and Land Appeal E104 of 2024) [2025] KEELC 4825 (KLR)[2025] KEELC 4825 (KLR)26 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Otieno v Ougo & another (No 2) [1987] KECA 79 (KLR)", Case Analysis (1987). Civil Application (interlocutory injunction application, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/79/eng@1987-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.