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Court of AppealDismissedCivil Application E410 of 2026

Askin Rajis alias Ashkin Rajis & another v Evelyn Ashkin alias Evelyn Silver Deck

Court of Appeal
25 September 2026
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kantai, Nderitu and Okello, JJA) on a motion under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of the High Court at Nairobi (Kendagor, J.) delivered on 17th July 2026 in H.C. Family Appeal No. E091 of 2026. The High Court had allowed an appeal against a magistrate's decision and held that neither the 1st applicant's Indiana marriage nor the respondent's marriage was recognisable in Kenya, ordering release of the deceased's remains to the respondent for burial in Nigeria. The applicants sought stay of that order, an injunction restraining removal of the body, and continued preservation of the remains at Lee Funeral Home pending an intended appeal. The respondent replied that the body had been released, cremated at the Hindu Crematorium in Nairobi on 4th August 2026, and the urn shipped to Lagos on 21st August 2026. Applying the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the ground challenging the High Court's treatment of the marriage certificate arguable, but held the nugatory limb failed because the body no longer exists and the relief sought cannot be granted or reversed. The motion was dismissed with costs to the respondent. The intended appeal on the recognition of foreign marriages remains to be determined on its merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, absent stay, the intended appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the challenge to the High Court's treatment of the marriage certificate as unsigned, when it may have been an extract, is arguable.

Reasoning

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.

02

Whether the appeal would be rendered nugatory absent stay

Holding

No - the body was cremated and the ashes shipped to Nigeria, so the relief sought can no longer be granted or reversed.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The motion for stay of execution and related conservatory orders is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 3

Costs

The motion fails and is dismissed with costs to the respondent.

Quotable passages

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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.
p. 2Rule 5(2)(b) principles
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.
p. 3Disposition
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.
p. 3Nugatory test - dissipated subject matter

Issues in the judgment

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minor

Second judge named 'DN NDERITU' in coram but 'NDUMA NDERI' in signature block

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, "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.