[2023] KEHC 19125 (KLR)
The court found that the applicant, as the wife of the missing person, provided credible and reliable evidence that Simon Kagura Wambugu has not been seen or heard from since 13 November 2012. The applicant's efforts to trace the subject, including reports to the area chief and police, were corroborated by...
Source-derived case information.
- Citation
- [2023] KEHC 19125 (KLR)
- Parties
- Applicant: Agnes Njeri Mwangi; Respondent: Simon Kagura Wambugu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E004 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- application allowed
- Judges
- TA Odera
- Legal Topics
- Presumption of Death, Missing Persons, Evidence of Absence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Njeri Mwangi
Applicant
Simon Kagura Wambugu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether the applicant has provided sufficient evidence to warrant a presumption of death for Simon Kagura Wambugu under section 118A of the Evidence Act.
- 2 Whether the court should order the issuance of a death certificate for the missing person.
Ratio Decidendi
The court found that the applicant, as the wife of the missing person, provided credible and reliable evidence that Simon Kagura Wambugu has not been seen or heard from since 13 November 2012. The applicant's efforts to trace the subject, including reports to the area chief and police, were corroborated by documentary evidence. The statutory threshold under section 118A of the Evidence Act was met, as more than seven years had elapsed without any communication from the subject. The court concluded that the presumption of death applies and that it is in the interest of justice to grant the orders sought, including the issuance of a death certificate.
Court Disposition
application allowed
Orders
- Simon Kagura Wambugu is presumed dead under section 118A of the Evidence Act.
- The Registrar of Births and Deaths is directed to issue a death certificate for Simon Kagura Wambugu.
Full Case Text
Judgment text and source record
24 paragraphs
In re Application for Presumption of Death of Simon Kagura Wambugu (Miscellaneous Civil Application E004 of 2023) [2023] KEHC 19125 (KLR) (21 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19125 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Civil Application E004 of 2023
TA Odera, J
June 21, 2023
In The Matter Of An Application For Presumption Of Death Of Simon Kagura Wambugu
In the matter of
Agnes Njeri Mwangi
Applicant
Ruling
1. The notice of motion dated November 3, 2022 filed in court on January 19, 2023 seeks that Simon Kagura Wambugu be presumed dead and a death certificate be issued to that effect by the Registrar of Births and Deaths.
2. The application is anchored on section 118A of the Evidence Act, section 3A and 63 (e) of the Civil Procedure Act and order 51 rule (1) of theCivil Procedure Rules and all other enabling provisions of the law. It is supported by a supporting and further affidavit sworn by the applicant Agnes Njeri Mwangi dated November 3, 2022.
3. Mr Mwenda presented the application before the court on behalf of the applicant.
4. I have considered the deposition made by the applicant in the affidavit on record as well as the information contained in the annextures thereto.
5. The applicant contends that she is the wife of Simon Kagura Wambugu (the subject) and that they got married under the Kikuyu Customary Law and that their union is blessed with 2 children and they established their matrimonial home in Gilgil. The applicant further deponed that before his disappearance, on 13. 11. 12 morning, the subject dropped off the children at a day care in Gilgil and paid for same .Also that the subject had business in Naivasha fly over area and her efforts to trace him there and in other places and also at his relatives homes were fruitless.
6. She reported the matter to their area chief and to Gilgil Police Station vide OB no. 12/15/11/and that since without any success. She said it has been over 7 years since the subject disappeared and has not been heard of.
7. I have considered the application, the affidavit of the applicant and all the annextures thereto. Section 118A of the Evidence Act which states 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.”
8. In this case, the applicant who is the subject’s wife of the deceased who is expected to see or hear from the subject almost on a daily basis or every so often have confirmed that they have not heard or seen the subject since 13. 11. 12 . I have confirmed from annextures to the affidavit filed by the applicant that she also reported his disappearance to the chief Gilgil Location. The area chief confirmed in his lette4r herein dated 3. 1.23 that the subject’s disappearance was reported to Gilgil Police Station vide OB No. 12/15/11/2012.
9. In view of the foregoing, I am satisfied that the applicant has demonstrated by credible and reliable evidence that the subject disappeared on or about 13. 11. 12, and has to date not been heard of by his family members. The subject has been missing for the past about 11 years and all efforts to trace his whereabouts have been fruitless.
10. From the foregoing, it is my finding that the applicant has met the threshold set in section 118A of the Evidence Act by providing evidence which raises a presumption that the subject is dead.
11. For the foregoing reasons, I find that it would be in the interest of justice to grant the applicant the orders sought herein. I therefore invoke the inherent powers of this court under section 3A of the Civil Procedure Act and allow the application in terms of prayers 1 and 2.
RULING DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF;Mwenda for the Applicant.Court Assistant; Bor.T. A. ODERA - JUDGE21/6/2023