[2020] KEHC 376 (KLR)
The court found that Mary Wairimu Mwangi has not been seen or heard from by those who would be expected to have heard from her if she were alive for a period exceeding seven years, following her disappearance after a boat accident en route to Zanzibar. The applicant provided evidence of reports made to police...
Source-derived case information.
- Citation
- [2020] KEHC 376 (KLR)
- Parties
- Applicant: Tony Kinyua Mwangi
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 7 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- LW Gitari
- Legal Topics
- Presumption of Death, Evidence Act Section 118a, Missing Persons, Declaration Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tony Kinyua Mwangi
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should declare and presume Mary Wairimu Mwangi dead under Section 118A of the Evidence Act.
- 2 Whether the statutory requirements for presumption of death have been satisfied.
Ratio Decidendi
The court found that Mary Wairimu Mwangi has not been seen or heard from by those who would be expected to have heard from her if she were alive for a period exceeding seven years, following her disappearance after a boat accident en route to Zanzibar. The applicant provided evidence of reports made to police authorities in both Kenya and Tanzania, and there was no evidence to rebut the presumption of death. The court applied Section 118A of the Evidence Act, which provides for a rebuttable presumption of death in such circumstances, and concluded that the statutory requirements had been met. Accordingly, the court declared and presumed Mary Wairimu Mwangi dead.
Court Disposition
application allowed
Orders
- Mary Wairimu Mwangi is presumed dead.
- The order be served on the Registrar of Births and Deaths for issuance of a death certificate.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
MISC. P & A NO. 7 OF 2019
IN THE MATTER OF AN APPLICATION FOR A DECLARATION OF PRESUMPTION OF DEATH OF MARY WAIRIMU MWANGI
TONY KINYUA MWANGI............................APPLICANT
RULING
1. The applicant Tony Kinyua Mwangi has filed a Notice of Motion seeking an order that the court be pleased to declare and presume dead one Mary Wairimu Mwangi by virtue of not having been heard by those who ordinarily would have heard of her or from her had she been alive for the last Seven years. The background of this sad matter is that the said Mary Wairimu Mwangi was wedded to Martin Kasimi Kirema on 14/7/2012. On 17/7/12 they parted for Dar es-Salam en route to Zanzibar via road using Dar Express Bus Company. On 18/7/2012 a boat was reported to have capsized on the Indian Ocean en route to Zanzibar at around midday. Mary Wairimu Mwangi went missing on 18/7/12 and has never been seen or heard ever since. A report of missing person was made at Athi River Police Station on 26/7/2012 OC12/26/7/2012. A further report was made on 9/8/12 at Oyster Bay Police Station in Dar es-Salaam and booked as RB/14359/2012. She has not been seen or heard, hence this application.
2. I have considered the application. Section 118A of the Evidence Act makes provision for presumption of death it 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.”
3. The law allows for presumption of death of a person who has not been seen or heard of by those who would have seen or heard of her if she was alive. In the circumstances of this case there is a presumption that she is dead as she went missing from the date when the boat capsized while sailing to Zanzibar where the deceased was heading for her honeymoon.
4. I therefore allow the application and order that Mary Wairimu Mwangi is presumed dead.
5. The order be served on the Registrar of Births and Deaths for issuance of a death certificate.
Dated at Kerugoya this 27th day of February 2020.
L. W. GITARI
JUDGE