[2023] KEHC 3740 (KLR)
The court found that the applicant and Ernest Wilhelm Rosener were married under Kikuyu customary law and jointly owned property. The subject had not been heard from for over seven years, and all reasonable efforts to trace him had failed. Applying section 118A of the Evidence Act, the court held that there was a...
Source-derived case information.
- Citation
- [2023] KEHC 3740 (KLR)
- Parties
- Applicant: Lucy Wanjiku Mwai; Respondent: Ernest Wilhelm Rosener
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E11 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- Application allowed; subject declared presumed dead.
- Judges
- HK Chemitei
- Legal Topics
- Presumption of Death, Customary Marriage, Missing Persons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lucy Wanjiku Mwai
Applicant
Ernest Wilhelm Rosener
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether the court should declare Ernest Wilhelm Rosener presumed dead under section 118A of the Evidence Act.
- 2 Whether the applicant and the subject were legally recognized as husband and wife under Kikuyu customary law.
Ratio Decidendi
The court found that the applicant and Ernest Wilhelm Rosener were married under Kikuyu customary law and jointly owned property. The subject had not been heard from for over seven years, and all reasonable efforts to trace him had failed. Applying section 118A of the Evidence Act, the court held that there was a rebuttable presumption of death in such circumstances. As there was no evidence to rebut this presumption, the court declared Ernest Wilhelm Rosener presumed dead, allowing the application as prayed.
Court Disposition
Application allowed; subject declared presumed dead.
Orders
- The application dated February 9, 2023 is allowed as prayed.
- Ernest Wilhelm Rosener is hereby declared presumed dead under section 118A of the Evidence Act.
Full Case Text
Judgment text and source record
21 paragraphs
In re Ernest Wilhelm Rosener (Miscellaneous Civil Application E11 of 2023) [2023] KEHC 3740 (KLR) (27 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3740 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Civil Application E11 of 2023
HK Chemitei, J
April 27, 2023
In the matter of
Lucy Wanjiku Mwai
Applicant
Ruling
1. In her notice of motion dated February 9, 2023, the applicant prays for orders that this court declares Mr Ernest Wilhelm Rosener presumed dead.
2. The application is supported by the sworn affidavit of the applicant dated the same date and the grounds thereof.
3. The applicant avers that she underwent a kikuyu customary marriage ceremony with the said Ernest Wilhelm Rosener on August 7, 2010 otherwise known as ruracio as per the attached annexed copy of the family agreement.
4. They thereafter invested jointly in two parcels of land namely LR NO. 15165/16 and 15165/19 respectively. That the subject person kept on operating between Kenya and Germany and her last communication with him was in 2013. That to date all efforts to trace him have been futile.
5. Consequently, she prays that this court issues orders presuming him to be dead. The applicant has attached correspondences between her advocates and the Germany Embassy in Kenya
6. The court has perused the application together with the annexures thereto. The court has also perused section 118A of the Evidence Act which states that;“Presumption of death.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.”
7. In view of the relationship between the applicant and the subject especially after the said ruracio and the purchase of joint properties as per the attached title documents, unless otherwise rebutted as per the aforementioned section of the law, it is presumed first of all that the applicant and the subject were husband and wife for all intend and purposes.
8. Secondly in view of the fact that the subject has not been heard for the last over 7 years it is again backed by the aforementioned law that the subject has passed on.
9. In the premises, the application herein dated February 9, 2023 is allowed as prayed.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 27THDAY OF APRIL 2023. H. K. CHEMITEIJUDGE