https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12719

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MISCELLANEOUS APPLICATION NO. E074 OF 2026** **IN THE MATTER OF AN APPLICATION FOR PRESUMPTION OF DEATH OF MOSES MAINA GUTU** **BY** **ELIZABETH NYAMBURA ………………….………………..…. APPLICANT** **RULING** 1. Before this Court is the Notice of Motion dated **9th February, 2026** which seeks the following orders: 2. ***THAT MOSES MAINA GUTU be presumed dead.*** 3. ***THAT the Registrar of Births and Deaths do issue a Death Certificate in respect of MOSES MAINA GUTU*** 4. The Applicant is the wife to ***MOSES MAINA GUTU***. She depones that the subject went missing after being released on cash bail in **KIBERA MCCR/3841 OF 2016.** 5. The evidence shows that soon after he was released on cash bail, he committed another offence against his own child and was in the process of arraignment in Court to take plea. According to her missing persons report dated 23rd February 2017, she stated that she left the subject at home the previous night at around 1700 hours and, on going back home at around 2100 hours, she did not find him. 6. She stated that, as the subject’s family, they have searched for him since his disappearance in 2017 to no avail. They have also made missing person reports with the police and also placed a newspaper advertisement announcing the disappearance of her husband to no avail. 7. The Subject has not been in touch with family members whom he is close to and whom it is expected he would have contacted. The wife depones further that she has visited the subject’s rural home in Nakuru County, and the subject’s mother has not heard of the son’s whereabouts since his disappearance. It is close to 9 years since the Subject was last seen. **Issues for Determination** 1. Upon reading the application and supporting affidavits of the Applicant, this Court discerns that the issue for determination is; 2. ***Whether the Applicant has made out a case to be granted the order of declaration of presumption of death of MOSES MAINA GUTU and the consequential orders arising therefrom*** 3. The Court confirmed the identity of the Applicant during a *viva voce* hearing of the application. She also produced a copy of her identity card. 4. The Applicant is the wife of the Subject; he has been missing since 22nd February 2017, his mysterious disappearance was reported to the police and the OB extract is annexed to the application. 5. That the subject has two criminal cases pending in **Kibera MCCR/3841 of 2016** and **HCCRC No. 18 of 2017,** where the matters were marked as closed pending the execution of the warrants of arrest. The warrants of arrest have never been executed as the Subject has never been traced. 6. The letter from the Assistant Chief confirms that his whereabouts remain unknown despite reasonable efforts to locate him. Additionally, a newspaper publication regarding this application has not prompted any responses. 7. The applicable law on presumption of death is found in **Section 118A** of the **Evidence Act** which provides 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.”*** 1. Before this presumption can be applicable, the person has to have been unheard of for a period of seven years. 2. This Court notes that the subject disappeared from home on 22nd February 2017, and the following day, the Applicant made a report to Stapol Central Nairobi Police Station. 3. Consequently, the subject has been missing for the period of nine (9) years and the Applicant has tendered sufficient material in compliance with the provisions of **Section 118A** of the **Evidence Act** to enable this Court to decide whether the subject should be presumed dead. 4. Under **Section 51 of the Law of Succession Act,** a copy of the death certificate is required in an application for the Grant of Letters of Administration. 5. **Rule 10 of the Probate and Administration Rules** provides as follows on presumption of death; ***Application for order presuming death*** ***“An application for an order presuming the death of a person of whose death there is no sufficient written evidence and to whose estate a grant is sought shall be made by summons to the court and shall be supported by an affidavit setting out the grounds of the application.”*** 1. The Applicant has expressed that the beneficiaries of his estate intend to initiate the probate process. To proceed with this, they require a formal order on the presumption of death as outlined in **Rule 10** of the Probate and Administration Rules. 2. Upon careful consideration, I have determined that the evidence presented by the Applicant is both compelling and adequate to support her claims. I therefore hereby issue the following orders; 3. ***The Subject herein, Moses Maina Gutu, is presumed dead;*** 4. ***The Registrar of Births and Deaths is hereby directed to issue a Death Certificate for Moses Maina Gutu, who is presumed dead.*** 5. ***There shall be no order as to costs.*** It is so ordered **DATED, DELIVERED** and **SIGNED** at **NAIROBI** on this **30th** day of **July 2026.** **……………………….** **C. KENDAGOR** **JUDGE** **In the presence of:** Court Assistant: Beryl Mr. Kanja Advocate holding brief for Mr. Juma Advocate for the Applicant