[2023] KEHC 17400 (KLR)
The court found that the applicants, as close family members, had not seen or heard from Richard Bisonga Nyagwansa for ten years since his disappearance in 2013. Their testimony was corroborated by a letter from the local chief and the lack of information from his employer, the Kenya Police Service. The court held...
Source-derived case information.
- Citation
- [2023] KEHC 17400 (KLR)
- Parties
- Applicant: Karen Kemunto Nyagwansa; Applicant: Nemwel Mbicha Nyagwansa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E152 of 2022
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application granted
- Judges
- MA Odero
- Legal Topics
- Presumption of Death, Missing Persons, Evidence Act Section 118a
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karen Kemunto Nyagwansa
Applicant
Nemwel Mbicha Nyagwansa
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether Richard Bisonga Nyagwansa, missing since 2013, should be presumed dead under Section 118A of the Evidence Act.
- 2 Whether sufficient evidence exists to direct the Registrar of Deaths to issue a death certificate for the subject.
Ratio Decidendi
The court found that the applicants, as close family members, had not seen or heard from Richard Bisonga Nyagwansa for ten years since his disappearance in 2013. Their testimony was corroborated by a letter from the local chief and the lack of information from his employer, the Kenya Police Service. The court held that the applicants had provided reliable and credible evidence of the subject's prolonged absence and that all reasonable efforts to trace him had failed. Applying Section 118A of the Evidence Act, the court concluded that the statutory presumption of death was triggered, and it was reasonable to presume that the subject was no longer alive. The court therefore granted the...
Court Disposition
application granted
Orders
- Richard Bisonga Nyagwansa is presumed dead.
- The Registrar of Deaths is ordered to issue a Certificate of Death in respect of Richard Bisonga Nyagwansa.
Full Case Text
Judgment text and source record
25 paragraphs
In re Application for Presumption of Death of Richard Bisonga Nyagwansa (Presumed Dead) (Miscellaneous Application E152 of 2022) [2023] KEHC 17400 (KLR) (Family) (28 April 2023) (Judgment)
Neutral citation: [2023] KEHC 17400 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Miscellaneous Application E152 of 2022
MA Odero, J
April 28, 2023
IN THE MATTER OF SECTION 118A OF THE EVIDENCE ACT (CAP 80) LAWS OF KENYA AND IN THE MATTER OF AN APPLICATION FOR PRESUMPTION OF DEATH OF RICHARD BISONGA NYAGWANSA (PRESUMED DEAD)
In the matter of
Karen Kemunto Nyagwansa
1st Applicant
Nemwel Mbicha Nyagwansa
2nd Applicant
Judgment
1. Before the court is the Notice of Motion dated 28th July 2022 by which the Applicants seek orders as follows:-1. Spent.2. That Richard Bisonga Nyagwansa be presumed dead.3. That the Registrar of Deaths be allowed and/or ordered to issue a Certificate of Death in respect of Richard Bisonga Nyagwansa.4. That costs be in the cause.
2. The Application which was premised upon Section 118A of the Evidence Act, Section 3A and 63 (e) of the Civil Procedure Act and Order 50 Rule (6) of the Civil Procedure Rules and all other enabling provisions of the law was supported by the Affidavits of even date sworn by the applicants.
3. The 1st Applicant Karen Kemunto Nyagwansa is the mother of the subject whilst the 2nd Applicant Nemwel Mbicha Nyagwansa is the brother of the subject. They both testified that the subject who was a police officer attached to Girgiri Police Station in Nairobi, disappeared in the year 2013. That to date no member of the family have seen the subject and his employer the Kenya Police Service have no idea of his whereabout.
4. The Applicants told the court that they have searched in hospitals and mortuaries but have not been able to trace the subject. The 1st Applicant told the court that she last saw her son at the burial of his late father in the year 2010. The Applicants state that they have not seen or heard from the subject since the year 2013 [ten (10) years ago]. They pray that he now be presumed dead.
5. Section 118A of the Evidence Act, Cap 80, Laws of Kenya provides as follows:-“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.”
6. The subject is said to have disappeared in the year 2013 whilst at work. The Chief of Mugirango Chache Location has written a letter dated 14th July 2022 confirming that the subject has not been seen in his rural home since March 2013.
7. His employer is unable to explain where he is. Despite the court having issued summons to the Kenya Police Service no officer came to court to explain the whereabouts of the subject.
8. The Applicants are the persons who would reasonably have been expected to hear from the subject on a regular basis. They have not seen or heard from him since 2013. Efforts to trace the whereabout of the subject have borne no fruit. I find that there exists reliable and credible evidence that the subject has been missing for the past ten (10) years. In the circumstances it is reasonable to presume that the subject is no longer alive.
9. Based on the foregoing, I find the present application to have merit. Accordingly I grant prayers (2) and (3) of the Notice of Motion dated 28th July 2022. As this is an Ex-parte application I will make no orders on costs.
DATED IN NAIROBI THIS 28TH DAY OF APRIL, 2023. …………………………………MAUREEN A. ODEROJUDGE