https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9978

In re Presumption of Death of James Kariuki Gitahi (Miscellaneous Application 47 of 2025) [2026] KEHC 9978 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9978 (KLR) Republic of Kenya In the High Court at Murang'a Miscellaneous Application 47 of 2025 TW Ouya, J July 2, 2026 In the matter of Hannah Waithira Kariuki Applicant Ruling 1.This is a ruling on a Notice of Motion Application dated 21st May 2025 brought under Section 118A of the Evidence Act, Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules seeking orders that:i.James Kariuki Gitahi be presumed dead;ii.The Registrar of Births and Deaths do issue a death certificate in respect of the said James Kariuki Gitahiiii.Costs be in the cause. 2.The Application is based on grounds on the face of the record and supporting Affidavits of Hannah Waithira Kariuki, Joseph Gitahi Kariuki, Julius Thuo Kariuki, Mary Wanjiru Kariuki and Samuel Maina Kariuki all sworn on even date. 3.The Applicant avers that she is the wife of the missing person, James Kariuki Gitahi with whom they had 4 Children namely: Joseph Gitahi Kariuki, Julius Thuo Kariuki, Mary Wanjiru Kariuki and Samuel Maina Kariuki now aged 34, 33, 31 and 29 years respectively. The Applicant and the missing person got married in 1988 and settled in their matrimonial home at Kangari in Kibage Village. 4.James Kariuki Gitahi worked in Nairobi from 2013 to 2018 while residing at Eastleigh from whence he went missing and has not been seen or heard of for a period exceeding 7 years. She posits that she last spoke to James Kariuki Gitahi in January 2018 when he informed her that he had gone to work. That since then, he went missing and all reasonable efforts including police reports and inquiries to trace him have borne no fruit. 5.In support of her application, the Applicant has attached evidence including police reports and inquiries, have borne no f annexed a copy of police abstract of Githumu Police Station dated 10th February 2025 where the formal missing person report was made. Further to the police report, she depones that the matter was reported to the media and publicized through Inooro FM on 31st January 2025 requesting for information on his whereabouts to no avail. 6.It is further stated that in addition to asking his close friends and relatives, the local administration and law enforcement officers have also been engaged in trying to trace the missing person but such efforts have not borne fruit. 7.Prior to his disappearance, James Kariuki Gitahi was a member and held an account with Equity Bank and Amica Sacco and that there is no evidence that he has made any withdrawals from his accounts ever since he went missing. 8.In support of the Application and the above averments, the applicant has attached an array of documents including the copies of police abstract, identity card and KRA personal identification number (PIN), Equity Bank card, Amica Sacco membership card, Royal media announcement receipt and a letter from the chief, Kibage Location all confirming the Applicant’s averments. 9.The Affidavits by Joseph Gitahi Kariuki, Mary Wanjiru Kariuki and Samuel Maina Kariuki are all in support of the averments made by the Applicant. 10.Having carefully considered the Application together with the Applicant’s averments and supporting evidence, I have isolated one issue for determination being, whether the Application is merited. 11.The law on presumption of death is governed by Section 118A of the Evidence Act which provides that a person who has not been heard of for seven (7) years by those who would naturally have heard from him is presumed dead. The burden then shifts to the party asserting otherwise. Courts have clarified in decisions such as Re Estate of Mwaura Mutungi (Deceased) [2020] eKLR and Re Estate of Prisca Ong’ayo Nande (Deceased) [2023] eKLR that the presumption arises only where there is credible evidence of prolonged absence and lack of communication. Further, as held in Re Estate of John Njoroge Mutua (Deceased) [2021] eKLR, the court retains discretion to determine the presumed date of death based on the circumstances of each case. 12.The above legal position has been consistently affirmed in Kenyan courts whose jurisprudence outlines strict evidentiary thresholds an applicant must meet before a court will issue a declaration of presumption of death. The first factor to be met for such an application to succeed exhaustive tracing. In the instant case, the Applicant attached an array of documents as indicated herein above. Of importance, is a copy of police abstract report from Githimu Police Station dated 10th February 2025 and a letter from the chief, Kibage Location which respectively confirm the involvement of the Police and the local administration into the matter of the missing person. The Royal Media (Inooro) announcement receipt also confirms that on 31st January 2025, a lost person announcement was made with respect James Kariuki Gitahi, the subject missing person. 13.Further to the above, the Applicants must present evidence that significant efforts were made as was held in re Application for Presumption of Death of Ndungu Nganga (2024): where the High Court affirmed that a Notice of Motion supported by evidence of extensive police and administrative searches over the statutory period is required to grant the order. In the instant case the chief’s letter is exhaustive in stating the circumstances under which the subject went missing and the fruitless efforts that have been made to trace him. 14.Lastly, in Clement Gitahi Wanjohi & Nicholas Mburu Wanjohi (2016): The court underscored that this presumption is rebuttable; an application will be dismissed if there is credible evidence (such as sighting by a relative) that the missing person is still alive. The above positions have been re-affirmed in Re Estate of Mwaura Muthumbi (Deceased), Re Estate of John Mwangi Gitau (Deceased) and Re Estate of Julius Nganga with emphasis that presumption of death in succession matters is a fact-driven inquiry requiring proof of prolonged unexplained absence, exhaustive but unsuccessful search efforts, and credible supporting evidence from official and familial sources. 15.With the above analysis in mind, this court notes that in the instant case, the evidence adduced on the subject’s disappearance is uncontroverted. I must also add that the applicant and her family have gone beyond the point of hoping that the deceased will one day show up alive, have accepted his unfortunate disappearance and have taken this legal step for closure and for purposes of succession. This court can only make the process easier by granting them access to justice. 16.Evidence has been adduced that the missing person last communicated on phone with the Applicant on an unknown date in January 2018 and was last seen at Eastleigh in Nairobi County. It is now seven years and six months since he was last seen which is a period exceeding seven (7) years, thus satisfying the statutory requirement. It is also evident the missing person has not been heard from by his nuclear family or any other person since January 2018. 17.The affidavits by the Applicant and her four adult (children) demonstrate that persons who would ordinarily expect communication have received none, fulfilling the second limb of Section 118A. 18.The Applicant has also demonstrated that effort has been made to trace the missing person but the same has borne no fruit. 19.Based on the above analysis, I am satisfied that that this application meets the threshold set above for the finding of presumption of death and that no evidence has been placed before Court to suggest that the missing person is alive. The presumption therefore remains unchallenged. For these reasons, I find that the Application has merit and should succeed. 20.Accordingly, the following orders shall ensue:i.James Kariuki Gitahi is hereby presumed dead.ii.The Registrar of Births and Deaths is directed to issue a death certificate.iii.The date of death shall be deemed to be the date of this ruling, absent evidence to the contrary.iv.Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ms. Nyawira for the ApplicantNyabuto – Court Assistant