Nazerali v Regional Criminal Investigations Office Coast & 4 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court found the intended appeal arguable on questions of jurisdiction, hearsay, and the threshold for exhumation and revision.
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.
Whether the appeal would be rendered moot or nugatory without an injunction
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.
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.
Legal principles established
#- 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
#- 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.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.The respondents will have a corresponding 14 days from the date of service to file written submissions
- 4.The appeal shall be fixed for hearing on basis of priority in the month of November 2022
- 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.No orders as to costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.