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

marriage nor the respondent’s marriage was recognisable in Kenya and ordered the remains of the deceased to be released to the respondent for burial in Nigeria. 3. The applicants being aggrieved by the said decision lodged a Notice of Appeal. It is said that the intended appeal is arguable and raises substantial questions of law including whether the High Court erred in importing the signing formalities of section 35 of the Marriage Act, 2014 into the recognition of a foreign marriage under section 40 thereof. That the High Court declined recognition of the 1st applicant’s Indiana marriage solely because the certicate produced did not bear the signatures of the parties whereas whether a marriage certicate bears the parties’ signatures is governed by the law and documentary practice of the place of celebration, many jurisdictions treating the certicate as an extract, record or return issued by the registering authority and authenticated by its seal or by the signature of the registrar and not as an instrument executed by the parties. It is said that the High Court erred in disregarding the documentary evidence establishing that the marriage was valid and subsisting including a certicate of the Vigo County Court of the State of Indiana conrming that the said marriage was valid and subsisting with no divorce or dissolution pending or granted joint income tax returns led by the 1st applicant and the deceased as a married couple and a joint bank account held by them. 4. It is said that the High Court failed to recognize the principle laid in San vs. GW [2020] KECA 46 (KLR) which establishes that the persons entitled to bury are the spouse, children, parents and siblings in that order and that having found that neither the claimants had proved a recognized marriage, the court was bound to descend to the next rung of that hierarchy namely the children and to determine the dispute in favour of the 2nd applicant (the daughter of the deceased) and the only child who was a party to the suit. It is said that unless the orders are granted the respondent will proceed to bury the remains of the deceased in Nigeria before the intended appeal is heard thereby rendering the appeal nugatory and any judgment of this Court academic, exhumation and repatriation of human remains being disfavoured in law and permitted only in exceptional circumstances. That the applicants stand to suer prejudice which is incapable of compensation in damages. 5. There is a supporting adavit by Askin Rajis alias Ashkin Rajis which repeats those matters. 6. In a replying adavit the respondent depones that the application is misconceived, bad in law and has been overtaken by events and that following the delivery of judgment by the High Court on 17th July, 2026 allowing the appeal and ordering the release of the remains to the respondent, the body of the deceased was released from the Lee Funeral Home and lawfully cremated at the Hindu Crematorium in Nairobi on 4th August, 2026 18 days after the judgment. Further, that following cremation the urn containing the cremated remains of the deceased was packaged and shipped to the respondent’s residence in Lagos Nigeria by Kenya Airways on 21st August, 2026. Furthermore, that the physical remains of the deceased are no longer at the Lee Funeral Home and therefore the motion has been completely dissipated and no longer exists. The deponent says that the intended appeal and the current application have been rendered academic as the relief sought regarding the custody, shipment and interment of the body cannot be granted or reversed. 7. Attached to the adavit are various documents including a letter dated 4th August, 2026 by Lee Funeral Service Limited which states that the deceased’s body was cremated on 4th August, 2026 and the ashes were processed and placed in an urn. There is a letter dated 5th August, 2026 by Shree Cutch Gujarati Hindu Union stating that the body of the deceased was cremated on 4th August, 2026. 8. For an applicant to succeed in an application under rule 5 (2)(b) of our rules, he must, rstly, 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. Such an applicant must, in addition, show that the appeal would https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1904/eng@2026-09-25 2

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be rendered nugatory absent stay - see Stanley Kangethe Kinyanjui vs. Tony Ketter & Others [2013] eKLR. 9. The history of the dispute is well set out in the judgment of Kendagor, J. There was a question before the trial magistrate on who between the applicants and the respondent was entitled to bury the deceased. The magistrate found in favour of the applicants. On appeal the High Court established that there was a question on the legality of the marriage between the 1st applicant and the deceased and there was also a question of the legality of the marriage between the respondent and the deceased. The Judge found that a marriage certicate by the applicant and the respondent was not signed by the parties to the marriage. It is intended to be argued on appeal that that nding was wrong because the document was an extract of the certicate and not the marriage certicate itself. We nd that to be an arguable ground on appeal and an arguable ground on appeal is not one that will succeed but which calls for determination by the Court. See - Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd Civil Application No. Nai 345 of 2004. 10. What about the nugatory aspect which an applicant must also satisfy? 11. It has been demonstrated by the respondent that after the appeal was allowed by the High Court and she was given the right to bury the body of the deceased, the body was removed on 4th August 2026 from Lee Funeral Home and was cremated at the Hindu Crematorium. 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. 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. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 S. ole KANTAI ................................... JUDGE OF APPEAL NDUMA NDERI ................................... JUDGE OF APPEAL DR. J. O. OKELLO ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1904/eng@2026-09-25 3

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