Late Anverali Nazerail’s brother Shakir Awar, a Pakistani national, suffered a major setback after the court of appeal in Mombasa thwarted an order to exhume the body of the deceased over alleged foul play.
Instead, a widow and two daughters got a reprieve after the court of appeal quashed the exhumation order issued on the body of her late husband.
The court of appeal delivered the judgment in favor of Kiran Nazerali, her 20-year-old daughter Mahek Fatima and her 18-year-old second daughter Nurjehan Nazerali for the body of the businessman not to be exhumed saying they find no merit in the appeal not to allow to quash an earlier order.
The court of appeal Judges Stephen Gatembu, and Pauline.
Nyamweya and George Odunga set aside orders of a lower court and a high court in Mombasa under a criminal revision application.
The court of appeal judges said in a 15-page judgment delivered through virtual means that there was not enough evidence of suspicious circumstances warranting the exhumation of the deceased’s body.
The trio argued in their judgment that without such evidence the court finds that the case did not meet the stringent threshold to disturb the dead.
“Accordingly, we find that there was an irregularity in the manner in which the exhumation proceedings were conducted,” the judges ruled.
The court of appeal added that inquiries appropriate to such an order were not made by the lower court before the said orders were made.
The judges argued although the court has the power to give an order for exhumation it is not an order to be issued lightly.
They argued it has always been accepted that after death there should be a decent and reverend burial of the body
The court said therefore the dead should remain undisturbed for all purposes except when otherwise directed by a court of law since that is the primary function of the court.
The bereaved family, through their counsel Mohamed Balala and Sborne Lijoodi, had moved to the court of appeal to challenge both the lower court’s and high court’s rulings in an application by the coast Regional Criminal Investigation office to exhume the body of Nazerali for an autopsy to establish the cause of his death.
The two courts had given a ruling to exhume the body which was buried in May last year at the Khoja Shia Ithnaasheri graveyard in Mombasa county in line with Islamic teachings.
The deceased’s estranged brother had resurfaced two weeks after the burial to seek the exhumation of the late businessman’s body.
The prosecution was led by Hillary Isiaho.
