[2025] KEHC 10071 (KLR)

[2025] KEHC 10071 (KLR)

The court held that the application for presumption of death is ordinarily ex parte and does not require service on interested parties unless they are necessary parties. The appellant, though cited as an interested party, was not a necessary party whose absence would have required dismissal of the proceedings. The...

Source-derived case information.

Citation
[2025] KEHC 10071 (KLR)
Parties
Appellant: Jason Onyango Bodo; Respondent: Reuben Orem Owili
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
11 July 2025
Case Number
Civil Appeal E113 of 2024
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal dismissed
Judges
A Mabeya
Legal Topics
Ex Parte Orders, Setting Aside Orders, Presumption of Death, Service of Process
Source Language
english
Civil Procedure Ex Parte Orders Setting Aside Orders Presumption of Death Service of Process

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Jason Onyango Bodo

Appellant

Reuben Orem Owili

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether failure to serve the appellant with the application for presumption of death denied him the right to be heard.
  2. 2 Whether the trial court erred in treating the appellant as a necessary party rather than an interested party.
  3. 3 Whether the trial court properly exercised its discretion in refusing to set aside the ex parte order presuming death.

Ratio Decidendi

The court held that the application for presumption of death is ordinarily ex parte and does not require service on interested parties unless they are necessary parties. The appellant, though cited as an interested party, was not a necessary party whose absence would have required dismissal of the proceedings. The trial court's failure to serve the appellant did not deny him an opportunity to challenge the presumption of death, as he could have adduced evidence to rebut the presumption under section 118A of the Evidence Act. The discretion to set aside ex parte orders is not automatic and must be exercised to avoid injustice, not to assist those seeking to delay justice. The court found...

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed with costs to the respondent.