[2012] KEHC 4398 (KLR)
The court found that George Odongo had not been seen or heard from by his family or close associates since August 2003, and all reasonable efforts to trace him had failed. Applying Section 118A of the Evidence Act, the court held that the statutory presumption of death arises when a person has not been heard of for...
Source-derived case information.
- Citation
- [2012] KEHC 4398 (KLR)
- Parties
- Applicant: Agnes Akinyi Odongo; Respondent: George Odongo (subject of application)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 3 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application granted
- Judges
- CM Njagi
- Legal Topics
- Presumption of Death, Missing Persons, Evidence of Absence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Akinyi Odongo
Applicant
George Odongo (subject of application)
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should presume George Odongo dead under Section 118A of the Evidence Act.
- 2 Whether the applicant has provided sufficient evidence that George Odongo has not been heard of for over seven years.
Ratio Decidendi
The court found that George Odongo had not been seen or heard from by his family or close associates since August 2003, and all reasonable efforts to trace him had failed. Applying Section 118A of the Evidence Act, the court held that the statutory presumption of death arises when a person has not been heard of for seven years by those who would naturally have heard from him if he were alive. The applicant's evidence was unchallenged and consistent, establishing that the requirements of the law were met. Therefore, the court concluded that a rebuttable presumption of death had been established and granted the order sought.
Court Disposition
application granted
Orders
- George Odongo is hereby presumed to be dead as prayed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
MISCELLANEOUS APPLICATION 3 OF 2012
IN THE MATTER OF THE ESTATE OF GEORGE ODONGO (PRESUMED DEAD)
R U L I N G
This application is brought by a Notice of Motion dated 24th November, 2011 and taken out under Order L Rule 1of theCivil Procedure Rules; Section 3Aof theCivil Procedure Act,andSection 118Aof theEvidence Act (Cap.80). By the application, the Applicant seeks for an order that one George Odongo be presumed dead. The application is supported by the annexed affidavit of Agnes Akinyi Odongo, the Applicant herself, and is based on the grounds that no member of the family has heard from the said George Odongo for the last 7 years and the search for his whereabouts has not borne any fruits.
In her supporting affidavit sworn on 24th November, 2011 the Applicant deposes that George Odongo was last seen on 11th August, 2003 at Makongeni, Nairobi and has never been seen or heard of since then. On the day he disappeared, he had said he would leave for his rural home at Rapogi. The Applicant and her children have tried in vain to search for him at Makongeni, Central Police Station, Kamiti Prison, the City Mortuary, but their efforts were unsuccessful. They visited the “Provincial Commissioner of police officers” (sic) Nairobi Province, and requested the officer-in-charge of road accidents for records of road accidents from 11th August, 2003 in fear that her husband might have been involved in a road accident, but official records did not have any such person. She was finally informed by the police both at Central Police Station and Industrial Area Police Station that all efforts to trace her husband or his whereabouts had failed. From the foregoing account, she verily believes that her husband is dead as he has never been seen or heard of by his family members or those close to him. It is now well over 7 years since he disappeared and it would be in the interests of justice to presume him dead.
In a supplementary affidavit sworn and filed on 28th February, 2012 the Applicant adds that she had been married to George Odongo since 1976 and the couple were blessed with 7 children. Her husband was an employee of the Kenya Railways Corporation for whom he had worked for over 33 years. She reiterates that her husband was last seen on 11th August, 2003 at around 3. 00 p.m. at Makongeni Estate, Nairobi, where he was staying and has never been seen or heard of since then. On the day of his disappearance, he became confused and said he would leave for his rural home, Rapogi in Migori District.
The family reported his disappearance to the police, searched for him at all police stations in Nairobi, and even looked for him at Kenyatta National Hospital and all the hospitals in Nairobi including Mathare Mental Hospital, but all was in vain. From the foregoing, the Applicant believes that her husband is dead as he has never been seen or heard of by his family members or those close to him since the year 2003. She avers that it is now over 8 years since her husband disappeared and it would be in the interest of justice to presume him dead.
In her sworn evidence in Court, she reiterated these averments and prayed for a finding that her husband was dead.
Section 118Aof theEvidence Act (Cap.80) is relevant to this matter. It states as follows –
“Where it is proved that a person has not been heard of for seven years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.”
The subject matter of this application, George Odongo, was last seen by members of his family in August, 2003. If he was still alive, it would be prudent to expect that his loved ones would have heard of him or from him. None of that has happened. In the circumstances, and in fidelity to Section 118Aof theEvidence Act, it is fair and proper to find that a rebuttable presumption of death has been established and that an order to that effect should be made accordingly.
I therefore direct that George Odongo be and is hereby presumed to be dead as prayed.
Orders accordingly.
DATEDand DELIVERED at NAIROBI this 21st day of May, 2012.
L. NJAGI
JUDGE