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Court of AppealAllowedCriminal Application E001 of 2022· [2022] KECA 1091 (KLR)

Nazerali v Regional Criminal Investigations Office Coast & 4 others

Court of Appeal
7 October 2022
1,829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped the exhumation of a Mombasa man's body, ruling that digging it up before an appeal is heard would make the appeal pointless.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesit, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules for an injunction pending an intended appeal. The applicant, the widow of Abbas Anverali Nazerali, sought to restrain the Regional Criminal Investigations Office from exhuming her husband's body pending appeal against a High Court ruling (Onyiego J, 24 August 2022) that declined to revise a magistrate's order permitting exhumation to establish cause of death. The burial had followed a report by the deceased's estranged brother questioning the circumstances of death. The Court held the intended appeal was arguable, identifying questions on jurisdiction, whether the supporting affidavit was hearsay, and whether the thresholds for exhumation and for declining revision were met. It further held that if exhumation proceeded and the appeal succeeded, the appeal would be rendered moot since exhumation cannot be reversed and damages could not compensate the family's trauma. The Court allowed the application in terms of prayer 3, restraining the 1st respondent from exhuming the body or interfering with the grave site until the appeal is determined. To balance the parties' interests, it directed the applicant to file her record of appeal within 14 days, failing which the injunction would stand automatically discharged and the respondents could execute the exhumation orders. The appeal was to be heard on priority in November 2022. The Court made no orders as to costs. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the intended appeal arguable on questions of jurisdiction, hearsay, and the threshold for exhumation and revision.

Reasoning

The Court identified live questions: whether the High Court erred in upholding the magistrate's jurisdiction, whether the supporting affidavit was hearsay, and whether the thresholds for exhumation and for declining revision were met. Citing Kinyanjui v Ketter, it held an arguable appeal need not necessarily succeed.

p. 3
02

Whether the appeal would be rendered moot or nugatory without an injunction

Holding

Exhumation before the appeal is determined would render the appeal moot, as it could not be reversed and damages could not compensate the family's trauma.

Reasoning

The substratum of the appeal is the exhumation order. If exhumation proceeds and the appeal later succeeds, the exhumation cannot be undone and damages cannot compensate the trauma, so the appeal would serve no purpose. The Court therefore granted the injunction to preserve the subject matter.

p. 3

Legal principles established

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  • An arguable appeal is not one that must necessarily succeed, but one which ought to be argued fully before the Court.
  • Where exhumation would render a successful appeal moot and incapable of reversal, an injunction pending appeal may issue under Rule 5(2)(b).

Court orders

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  1. 1.The 1st respondent is restrained by order of injunction, whether by itself or agents, from exhuming the body of Abbas Anverali Nazerali, or interfering with the grave site until the applicant's appeal is heard and determined
  2. 2.The applicant shall file and serve her memorandum and record of appeal alongside written submissions within 14 days from the date of delivery of the ruling
  3. 3.The respondents will have a corresponding 14 days from the date of service to file written submissions
  4. 4.The appeal shall be fixed for hearing on basis of priority in the month of November 2022
  5. 5.If the applicant defaults in filing, the order of injunction shall stand automatically discharged and the respondents shall be at liberty to execute the orders of exhumation
  6. 6.No orders as to costs of the application

Authorities

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Legislation

  • Criminal Procedure CodeSections 362 and 364
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Attorney General & another vs. Tolphin Nafula & 5 others
    [2021] eKLR

    An issue of jurisdiction renders an appeal eminently arguable

  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR

    Definition of an arguable appeal under Rule 5(2)(b)

On appeal from
High Court of Kenya at Mombasa
Criminal Revision Application No. E177 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nazerali v Regional Criminal Investigations Office Coast & 4 others", Case Analysis (2022). Criminal Application E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1091/eng@2022-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.