[2024] KEHC 3643 (KLR)

Hongo & another v Registrar of Deaths (Miscellaneous Civil Application E199 of 2023) [2024] KEHC 3643 (KLR) (8 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3643 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Application E199 of 2023

RE Aburili, J

April 8, 2024

Between

Maria Juma Hongo

1st Applicant

Mourice Omondi Muga

2nd Applicant

and

Registrar of Deaths

Respondent

Ruling

1. Vide an application dated 6th December 2023, the Applicants herein Maria Juma Hongo and Mourice Omondi Muga, who are mother and son, seek from this court orders that one, Joanes Hongo Juma who is the first Applicant’s husband and father to the 2nd Applicant; and who has not been seen nor heard of from 24th June 2000 and his whereabouts remain unknown, be presumed dead since it is now 23 years since his disappearance and over 7 years have lapsed, thereby him qualifying to be presumed dead.

2. The applicants have also sworn a supporting affidavit annexing the police abstract from the Occurrence Book as reported at Maseno Police Station and the letter dated 5th July 2023 from the Area Chief of North West Kisumu Location confirming the situation and listing the persons whom the said Joanes Hongo Muga left behind, being the 1st Applicant wife, the 2nd applicant his first son, two of his daughters have since died and now survived by Anna Atieno, Jane Adhiambo, Joseph Otieno Muga and Rose Achieng.

3. It is also deposed that the 1st Applicant and the person who disappeared were married for over 41 years from 1951 and that at the time of his disappearance, he was old aged 65 years and been made to trace him at various sites including mortuaries in Siaya, Jaramogi Oginga Odinga and at Kodiaga Prison to no avail.

4. It is also deposed that none of his relatives, have heard from him and neither has he for over the 23 years now, reached out to any of his friends or relatives hence the application that he be presumed dead and a death certificate do issue to that effect.

5. I have considered the application which was argued by the advocate for the applicants, Ms. Nyambeki.

6. I have also considered the grounds and depositions thereto and the annextures. I have interviewed the two applicants in person.

7. Section 118A of the Evidence Act, Cap 80 Laws of Kenya is on presumption of death. The Section provides that:“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.”

8. What the above section speaks to is that where a person disappears without a trace whether dead or alive, he may be presumed dead.

9. In Re ENK [2017] eKLR, the Court stated that:“The presumption of death is a rebuttable presumption which can be reversed if sufficient evidence is adduced to the contrary. Therefore, before this presumption is made, sufficient evidence has to be adduced in court to prove the presumption of death.”

10. The two applicants attended court on the hearing dated and today they are present in court.

11. If the missing person was 65 years old, he is now 87 years old assuming he is alive. He is said to have been sickly and suffered from mental delusion although no medical records were availed.

12. The Area Chief for his location has confirmed that the person of J.H.M went missing on 24th June 2000 and has never been heard of or seen for over 23 years now.

13. I am satisfied that there is evidence that the missing person has not been seen or heard of for the last 23 years from 24th June 2000 hence the application meets the requirements of Section 118A of the Evidence Act.

14. With regard to the prayer that the Registrar of Deaths do issue a certificate of death in respect of the said Joanes Hongo Muga, Section 17 of the Births and Deaths Registration Act provides that:“Upon the death of any person, the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same registration area as the deceased, and, in default of such relatives, of each person present at the death and of the occupier of the house in which to his knowledge the death took place, of each inmate of such house, or of any person finding or taking charge of the body of such person or causing the body of such person to be buried or otherwise disposed of, to give notice within such time as may be prescribed to the Registrar of the registration area in which the death took place.”

15. Thus, the declaration of presumption of death of the missing person herein by the court means that the person is dead by operation of law and not as a matter of fact and therefore the said death has to be registered by the Registrar as required by law.

16. Accordingly, I hereby allow the application dated 6th December 2023 and order as follows:1. That J.H.M, a missing person is hereby presumed dead by operation of law.2. The Registrar of Births is hereby ordered to issue a certificate of death in respect of the said J.H.M, presuming the said J.H.M dead from the first day of the end of the 7th year from 24th June 2000.

17. Orders accordingly.

18. This file is closed.

19. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF APRIL, 2024********R. E. ABURILIJUDGEPage 5 of 5