[2022] KEHC 16215 (KLR)

In re Declaration of the Death of Kipruto Arap Chebutuyai (Miscellaneous Application E022 of 2022) [2022] KEHC 16215 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16215 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Application E022 of 2022

RL Korir, J

December 8, 2022

IN THE MATTER OF AN APPLICATION OF DECLARATION OF THE DEATH OF KAC AND IN THE MATTER OF ARTICLE 2 (5), 46 (1), 48 AND 159 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTION 118A OF THE EVIDENCE ACT, CAP 80, LAWS OF KENYA AND IN THE MATTER OF SECTION 1A, 1B & 3A OF THE CIVIL PROCEDURE ACT, CAP 21, OF THE LAWS OF KENYA AND IN THE MATTER OF ORDER 51 RULE 1 OF THE CIVIL PROCEDURE RULES, 2010

In the matter of

KAC

1st Applicant

DKS

2nd Applicant

ECC

3rd Applicant

Ruling

1. The applicants filed a notice of motion application dated June 21, 2022 which sought the following Orders:i. That KAC be and is hereby presumed dead.ii. That this Honourable Court do order the Registrar of Births and Deaths to issue a Death Certificate in respect of KACiii. That consequent to the grant of the prayers above, the Honourable Court be pleased to issue such further direction and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.iv. Thatcosts be in the cause.

2. The application was brought under section 118A of the Evidence Act, article 2 (5), 46 (1), 48 and 159 of theConstitution of Kenya, 2010, Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by DKS on June 21, 2022.

3. The Applicable law in the instant application is section 118A of the Evidence Act. It 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.”

4. In the case of In re E N K[2017] eKLR, Njunguna, J held that:-“The presumption of death is a rebuttable presumption which can be reversed if sufficient evidence is adduced to the contrary. Therefore, before this presumption is made, sufficient evidence has to be adduced in court to prove presumption of death.”

5. I have read and carefully considered the Application herein, the Supporting Affidavit by DKS and the annexures thereto and the main issue for determination is whether the Applicants have made a case for the grant of the orders sought. When the Application came up for directions on September 19, 2022, I ordered the close relatives be present on the next hearing date for examination by the court.

6. The Applicants attended court on November 15, 2022, The 1st Applicant (KC ) who was the brother of KAC (missing person) testified that he was about 100 years old. He told the court that the missing person disappeared very many years ago and he had never married. That at the time of his disappearance, the missing person had not disagreed with anyone although the family considered that he had some mental instability. The 1st Applicant further testified that they had looked for him for a long time to no avail.

7. The 2nd Applicant (DKS) who swore the Supporting Affidavit on behalf of the other Applicants told the court that he was the nephew of the missing person. He stated that the missing person was a resident of Mosonik location and that he had disappeared without a trace in the year 1975. That the missing person was not married and had no children.

8. It was the 2nd Applicant’s testimony that the missing person was mentally unstable and that he would be currently aged around 106 years. That as a family they had tried to trace him but their efforts had proven futile.

9. The Applicants have attached a letter from the Chief of [particulars withheld] location where the deceased hailed from. The letter stated that KAC went missing in the year 1975.

10. It is a requirement for such an Application to be allowed that the said person ought not to have been heard of for a seven-year period by those people who might be expected to have heard of him if he were alive. According to the information now in court, the Applicants who were close relatives to the missing person have not heard from him for a period of 47 years.

11. It is my finding that the Applicants have satisfied this court as to the requirements of the law through the evidence presented herein.

12. With regard to the prayer directed to the Registrar of Births and Deaths, Section 17 of the Births and Deaths Registration Act provides as follows:-“Upon the death of any person the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same registration area as the deceased, and, in default of such other relatives, of each person present at the death and of the occupier of the house in which to his knowledge the death took place, and, in default of the persons hereinbefore in this section mentioned, of each inmate of such house, or of any person finding or taking charge of the body of such person or causing the body of such person to be buried or otherwise disposed of, to give notice within such time as may be prescribed to the registrar of the registration area in which the death took place.”

13. In my view, the declaration of presumption of death of the missing person herein by this court means that he is dead by operation of law, and that the said death has to be registered by the Registrar as required by law. I will thus order the Registrar to register the death of the subject herein.

14. Consequently, I allow the application dated June 21, 2022 and order as follows:-i)An order be and is hereby issued by this court presuming that KAC is dead.ii)The Registrar of Births and Deaths is hereby ordered to issue a Certificate of Death in respect of the said KAC.

15. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 8TH DAY OF DECEMBER, 2022. .........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Ms. Chepngetich holding brief Mr. Kipkorir for the Appellants, Kiprotich(Court Assistant).