[2022] KEHC 11234 (KLR)
The court found that Sebastian Wachira had not been heard of for more than 37 years by those who would be expected to have heard from him if he were alive, including his wife and children. The evidence, including affidavits from six adult children, satisfied the court that the statutory threshold under section 118A...
Source-derived case information.
- Citation
- [2022] KEHC 11234 (KLR)
- Parties
- Applicant: Rahab Wangari Wachira
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 4 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- Application for presumption of death granted in part.
- Judges
- HPG Waweru
- Legal Topics
- Presumption of Death, Evidence Act Section 118a, Missing Persons, Declarations of Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rahab Wangari Wachira
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether the court should grant an order of presumption of death in respect of Sebastian Wachira under section 118A of the Evidence Act.
- 2 Whether the Registrar of Deaths should be ordered to issue a certificate of death for Sebastian Wachira.
Ratio Decidendi
The court found that Sebastian Wachira had not been heard of for more than 37 years by those who would be expected to have heard from him if he were alive, including his wife and children. The evidence, including affidavits from six adult children, satisfied the court that the statutory threshold under section 118A of the Evidence Act had been met. Accordingly, the court granted a rebuttable presumption of death in respect of Sebastian Wachira. However, the court declined to order the Registrar of Deaths to issue a certificate of death, holding that such an order was outside the ambit of the present proceedings.
Court Disposition
Application for presumption of death granted in part.
Orders
- A rebuttable presumption of death is made in respect of Sebastian Wachira.
- The request for an order directing the Registrar of Deaths to issue a certificate of death is declined.
Full Case Text
Judgment text and source record
19 paragraphs
In re application for an order of presumption of death of Sebastian Wachira (Miscellaneous Civil Case 4 of 2020) [2022] KEHC 11234 (KLR) (5 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11234 (KLR)
Republic of Kenya
In the High Court at Nanyuki
Miscellaneous Civil Case 4 of 2020
HPG Waweru, J
May 5, 2022
IN THE MATTER OF AN APPLICATION FOR AN ORDER OF PRESUMPTION OF DEATH OF SEBASTIAN WACHIRA RAHAB WANGARI WACHIRA…… APPLICANT
In the matter of
Rahab Wangari Wachira
Applicant
Ruling
1. I have before me an application brought under section 118A of the Evidence Act, Cap 80. It is by notice of motion dated 17/02/2020, supported by the annexed affidavit of the Applicant, Rahab Wangari Wachira. The application seeks an order of presumption of death in respect to one Sebastian Wachira (hereinafter called the Subject).
2. The Applicant has deponed that she got married to the Subject in the year 1970; that they lived in their matrimonial home in Laikipia-West Sub-County, and that they were blessed with nine children whom she has named, with two of them now being deceased.
3. The Applicant has further deponed that in the month of April 1984 the Subject disappeared from the matrimonial home, never to be seen or heard of again; that his disappearance was reported to the Chief of the area and also to his own parents and siblings; and that the Applicant and the children made enquiries as to this whereabouts to no avail. It has now been more than 37 years since the Subject disappeared.
4. Six (6) of the Applicant’s children with the Subject, all of them adults, have sworn affidavits about the disappearance without trace of their father. Those affidavits were filed in court on 25/10/2021.
5. Upon the material now before the court, I am satisfied that it has been proved that the Subject herein, Sebastian Wachira, has not been heard of for a period now far in excess of seven years by those who might be expected to have heard of him if he were alive. I will therefore give an order of a rebuttable presumption that he is dead. It is so ordered.
6. The other order sought, that is, that “the Registrar of Deaths do issue a certificate of death in respect of the said Sebastian Wachira” is outside the ambit of the present proceedings and I decline to grant the same.
DATED AND SIGNED AT NANYUKI THIS 4THDAY OF MAY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 5THDAY OF MAY 2022