[2018] KEHC 4155 (KLR)
The court found that the applicant had established, on a balance of probabilities, that A. N. Njenga Kiiru had not been heard of for 42 years by those who would be expected to have heard of him if he were alive. The evidence included sworn affidavits, oral testimony from the applicant and corroboration by the local...
Source-derived case information.
- Citation
- [2018] KEHC 4155 (KLR)
- Parties
- Applicant: Kamau Njoroge; Respondent: A. N. Njenga Kiiru
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 24 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application granted
- Judges
- K Kimondo
- Legal Topics
- Presumption of Death, Evidence Act Section 118a, Missing Persons, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Njoroge
Applicant
A. N. Njenga Kiiru
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether A. N. Njenga Kiiru can be presumed dead under section 118A of the Evidence Act.
- 2 Whether sufficient evidence has been adduced to support the presumption of death.
Ratio Decidendi
The court found that the applicant had established, on a balance of probabilities, that A. N. Njenga Kiiru had not been heard of for 42 years by those who would be expected to have heard of him if he were alive. The evidence included sworn affidavits, oral testimony from the applicant and corroboration by the local chief, all confirming that extensive efforts to trace Njenga had been unsuccessful. Applying section 118A of the Evidence Act, the court held that the statutory requirements for a rebuttable presumption of death had been satisfied. Accordingly, the court certified that A. N. Njenga Kiiru is presumed to be dead.
Court Disposition
application granted
Orders
- A. N. Njenga Kiiru is hereby presumed to be dead.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
MISCELLANEOUS CIVIL APPLICATION NO. 24 OF 2017
RE A. N. NJENGA KIIRU
KAMAU NJOROGE..................................APPLICANT
RULING
1. The applicant prays that A. N. Njenga Kiiru (hereafter Njenga) be presumed dead.
2. The ex-parte motion is dated 18th January 2017. It is predicated upon two affidavits sworn by Kamau Njoroge on 18th January 2017 and 3rd October 2017 respectively. He deposes that a period of 42 years has passed since Njenga was last seen or heard of.
3. Owing to the nature of the relief sought, I directed that the applicant; and, the local chief testify under oath.
4. I am satisfied from the evidence of Kamu Njoroge (PW1) that Njenga disappeared from Gikindu village in the year 1975. PW1 is his younger and sole brother. Njenga was aged 30 and unmarried at the time he vanished. All efforts to trace him have been fruitless. The search is well documented at paragraphs 6 to 8 of the supplementary affidavit.
5. That evidence was corroborated by Charles Muna Kimani, the Senior Chief, Muna location (PW2). He seemed to know the family very well although he never met Njenga.
6. Section 118A of the Evidence Act provides-
“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.”
7. I find on a balance of probabilities that Njenga has not been heard of for 42 years by those who might be expected to have heard of him if he were alive. I certify that A. N. Njenga Kiiru be and is hereby presumed to be dead.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’Athis 27th day of September 2018.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
Mr. Njoroge holding brief for Mr. Mbue the applicant instructed by Mbue Ndegwa & Company Advocates.
Ms. Dorcas and Ms. Elizabeth, Court Clerks.