Askin Rajis alias Ashkin Rajis & another v Evelyn Ashkin alias Evelyn Silver Deck
The bottom line
#The Court of Appeal refused to halt a burial dispute because the body had already been cremated, leaving nothing for the appeal to preserve.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, absent stay, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
Yes - the challenge to the High Court's treatment of the marriage certificate as unsigned, when it may have been an extract, is arguable.
The applicants intend to argue that the document considered by the High Court was an extract of the certificate rather than the certificate itself, and that signing formalities of section 35 of the Marriage Act were wrongly imported into recognition of a foreign marriage under section 40. The Court found this sufficient to meet the arguability threshold without deciding the merits.
Whether the appeal would be rendered nugatory absent stay
No - the body was cremated and the ashes shipped to Nigeria, so the relief sought can no longer be granted or reversed.
The respondent demonstrated that after the High Court judgment the body was released, cremated on 4th August 2026 at the Hindu Crematorium, and the urn shipped to Lagos on 21st August 2026. With the body no longer in existence, the subject matter of the stay application has dissipated and the second rule 5(2)(b) principle is not satisfied.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory absent stay.
- An arguable ground is not one that must succeed but one that calls for determination by the Court.
Court orders
#- 1.The motion for stay of execution and related conservatory orders is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- H.C. C.A No. E091 of 2026
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment ordering release of the deceased's remains for burial in Nigeria; injunction restraining removal of the body; preservation of the remains at Lee Funeral Home
The body had already been cremated and the ashes shipped to Nigeria, so the appeal could not be rendered nugatory
Costs
The motion fails and is dismissed with costs to the respondent.
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.
For an applicant to succeed in an application under rule 5 (2)(b) of our rules, he must, firstly, demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that it is not frivolous.
The applicants having failed to satisfy the second principle on which an applicant is entitled to orders for stay the motion fails and is dismissed with costs to the respondent.
In those circumstances, we cannot see how the intended appeal would be rendered nugatory as the body of the deceased is no longer in existence.
Issues in the judgment
#Second judge named 'DN NDERITU' in coram but 'NDUMA NDERI' in signature block
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Askin Rajis alias Ashkin Rajis & another v Evelyn Ashkin alias Evelyn Silver Deck", Case Analysis (2026). Civil Application E410 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1904/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.