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An appellate court has stopped the exhumation of a Pakistani tycoon whose cause of death has been a bone of contention between his wife and brother.
The judges overturned orders allowing the exhumation of Abbas Anverali Nazeralli, who died last year after being transferred to another hospital.
Justices Stephen Gatembu, Pauline Nyamweya and George Odunga said the orders by the High Court and magistrate's court were erroneous as there was no evidence of suspicious circumstances warranting exhumation.
"Accordingly, we find there was an irregularity in the manner in which the exhumation proceedings were conducted as inquiries appropriate to such an order were not made by the learned magistrate before the said order was made. The learned judge of the High Court by dismissing the revision, based on findings other than those of the learned magistrate, was similarly in error," said the judges.
On August 24, last year, Justice John Onyiego dismissed an application that sought the revision of the decision by Mombasa Resident Magistrate Vincent Adet issued on July 27, last year, to exhume the body.
The Directorate of Criminal Investigations sought the exhumation of the body that was buried on May 15, last year, for medical examination to confirm the cause of death based on the report made by Shakir Anwar, who alleged foul play in the death of his brother.
The judges said that exhumation in the face of objections from the wife Kiran Nazerali and her daughters, Mahek Fatima, 20, and Nurjehan Nazerali, 18, was a radical and extreme step. That exhumation should only be ordered in a clear circumstance and as a last resort due to the privacy and dignity interests of the family involved.
"Consequently, we find merit in this appeal, which we hereby allow, set aside the order made in Mombasa High Court Criminal Revision Application No E177 of 2022 on August 24, 2022, dismissing the application and substitute therefore an order allowing the same," said the judges.
The judges said although the court has the power to give an order for exhumation, it is not an order that ought to be issued lightly.
They said such an order should not be granted where the existence of evidence sought is speculative its value in aiding the case is conjectural and remote or where the evidence sought can be proved or established by other means.
According to the DCI, the widow and a family friend transferred the businessman from Aga Khan Hospital to Mombasa Hospital against medical advice.
The judges noted that the medical report from Aga Khan Hospital showed that the tycoon's body had swellings, old multiple wounds and that he suffered from insomnia and altered mental status.
Abbas died the same day he was transferred.
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