The family of Mombasa businessman Abbas Anverali Nazeralli, who died in May last year, can now breathe easy after the Court of Appeal overturned orders for the exhumation of his body.
Nazeralli’s brother, Shakir Anwar, a Pakistan national, had wanted the body exhumed after he made claims that his death could be a result of foul play.
Anwar, who surfaced two weeks after the burial of his brother, had reported to the Coast Regional Criminal Investigation Office that there were suspicions regarding the circumstances that lead to the death of Nazeralli.
According to the Coast Criminal Investigation Office, the deceased’s wife Kiran Nazeralli transferred her husband from Aga Khan Hospital to Mombasa Hospital, against medical advice from the first hospital.
Nazeralli had fallen ill on May 13 and was rushed to Aga Khan Hospital by his wife and another family friend identified as Hussein Chandu.
He was admitted to the ICU with a diagnosis of fluid retention in acute kidney injury, oliguria, severe sepsis and encephalopathy.
At Aga Khan, it was also revealed that his body had swellings, old multiple wounds and that he suffered from insomnia and altered mental status.
The hospital had suggested sepsis and further tests, but Kiran allegedly refused the dialysis and opted to take the patient to Nairobi or Pakistan for a second opinion.
They went home with the patient that evening.
However, on the morning of May 15 at around 4 am, he was rushed back to Mombasa Hospital but was pronounced dead.
“It was alleged that the immediate family members of the deceased were neither made aware of the circumstances under which the deceased died nor were they informed of the fact of internment. Despite the said report and against the police advice, the wife hurriedly interned the body before the matter was fully investigated,” the police report reads in part.
On July 27, 2022, Mombasa senior resident magistrate Vincent Adet directed the body, which had been buried two months prior at the Khoja Shia Ithnaasheri graveyard in Mombasa county, be exhumed within 7 days for autopsy.
Aggrieved by the decision, Kiran and her two daughters; Mahek and Nurjehan moved to the High Court on July 28, 2022, seeking revision and quashing of the trial Magistrate’s decision.
The family argued that the exhumation orders were granted without any basis and were contrary to the customs and religious beliefs of the deceased.
They further contended that the magistrate court lacked jurisdiction to issue the impugned order.
However, High Court Judge John Onyiego found that the ground for revision had not met the required threshold because religious beliefs do not count on matters in the investigation of a murder.
The High Court also ruled that the matter was properly before the magistrate court pursuant to section 146 of the Public Health Act read with sections 387 (2) and 388 (3) of the Criminal Procedures.
The judge found no merit in the application revision and on August 24, 2022, dismissed it.
However, Kiran appealed the matter further, asking the Appellate Court to consider eight grounds in making its decision.
In summary, Kiran contended that the High Court was wrong in finding that the magistrate court had powers to entertain the application, and failed to consider the relevant provision of law.
She further argued that the judge failed to find that the magistrate court had made its decision based on hearsay.
A three-judge bench of the Court of Appeal consisting of Steven Gatembu Kairu, Pauline Nyamweya and George Odunga found that indeed the magistrate and the high courts erred in their decisions.
The trio, in the 15-page judgement dated February 3, 2023, found that a permit to exhume a body may only be issued to the legal personal representative or next of kin of the deceased under the Public Health Act.
In this circumstance, the application to exhume the body was made by the Coast Regional Investigation office and not any of the Nazeralli family members.
“Clearly, therefore unless the proviso applied, the court could not grant the application as the applicant did not fall under the class of people entitled to apply for the permit,” the judges ruled.
The judges further argued even though the court has powers to give orders for exhumation, it is not an order that ought to be issued lightly.
“It has always been accepted that after death, there should be a decent and reverend burial for the dead. Therefore, the dead should remain undisturbed for all purposes except otherwise directed by the court,” they said.
The three judges said they add their voices to the views of the family that exhuming the body of the deceased is a radical and extreme step that should be ordered as a last resort due to the privacy and dignity interests of the family involved.
“Such an order should not be granted where the existence of evidence sought is speculative and uncertain and its value in aiding the case is conjectural and remote or where the evidence sought can be proved or established by other means,” the judgement read in part.
The Appellate Court also said there was no evidence that the deceased wife had been barred from burying the body and also there was no evidence of suspicious circumstances warranting the exhumation of the body.
“Without such evidence, we find the case did not meet stringent conditions for disturbing the dead,” they ruled.
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