[2021] KEHC 6238 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

MISC. SUCCESSION APPLICATION NO. 1 OF 2020

IN THE MATTER OF THE ESTATE OF JOSEPH KIBIU WACHIRA (THE SUBJECT)

SUMMONS FOR THE PRESUMPTION OF THE DEATH OF A PERSON

UNDER RULE 10 OF THE PROBATE AND ADMINISTRATION RULES

(LAW OF SUCCESSION ACT. CAP160)

RULING

1. The application is brought under the provisions of Rule 10 the Probate and Administration Rules; the application is supported by a Supporting Affidavit made by JOHN GIKUU WACHIRA and is dated 20th of January, 2020; the deponent sought the following orders;

(a) THAT JOSEPH KIBIU WACHIRAwho left his home in Githagara Village of Gakinduini Location in Mukuruweini Sub-County in 1988 and has not been seen or heard from since then, be presumed dead.

(b) THATthe Registrar of Births and deaths do issue a Certificate of Death in respect of the said JOSEPH KIBIU WACHIRA

(c) THATcosts be in the cause.

2. At the hearing hereof the applicant was represented by learned counsel Mr Wanjohi who made oral submissions; hereunder is a summary of the applicant’s case;

APPLICANT’S CASE

3. The applicant is the younger brother of the subject JOSEPH KIBIU WACHIRA (the subject) and both are the sons of the late Richard Wachira Kibiu who died on 3/12/1971 and the late Jerusha Wangui Wachira who died on 18/11/1988;

4. The family is made up of nine (9) siblings inclusive of the subject; the siblings have consented to the application and the consent is annexed to the instant application and is dated the 20/01/2020;

5. That upon their mother’s demise and after her burial the subject left home for an unknown destination and has never been seen or heard from by any relatives; the subject, Joseph had gone missing and his mysterious disappearance had been reported to Mukuruweini Police Station and was entered in the Occurrence Book as OB No.22/9/3/2020 and a copy of the OB extract is annexed to the Supplementary Affidavit made on 9/10/2020;

6. There is also a Further Affidavit dated 17/03/2021 in which the applicant depones that the police conducted investigations into the disappearance of his brother and issued the applicant with an Investigation Report dated the 2/02/2021 which confirms the subject disappeared from their home in 1988 and has never been seen or heard from to date; a copy of the Investigation Report is annexed to the Further Affidavit;

7. His prayer was that the application be allowed as prayed.

ISSUES FOR DETERMINATION

8. After hearing the submissions of the learned counsel and upon reading the affidavits this court has framed only one issue for determination; which is as follows;

(i)Whether the applicant has made out a case to be granted the orders sought.

ANALYSIS

Whether the applicant has made out a case to be granted the orders sought.

9. The applicant deponed that he was the younger brother of the subject and brought this instant application on behalf of his other siblings; his claim is that the subject had gone missing in 1988 and his mysterious disappearance had been reported to the police and the OB extract was annexed to the application;

10. On the presumption of death the applicable law is found at Section 118A of the Evidence Act which 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.”

11. Before this presumption can be applicable the person has to have been unheard of for a period seven years; the presumption of death is a rebuttable presumption which can be reversed if sufficient evidence is adduced to the contrary; therefore before this assumption is made sufficient evidence has to be adduced in court to prove this presumption of death; reference is made to the case of Re.E N K [2017]eKLR;

12. This court notes that the subject disappeared from home in 1988 and in the year 2020 the applicant made a report to Mukuruweini Police Station and it was entered in the Occurrence Book as OB No.22/9/3/2020; a copy of the OB extract is annexed to the Supplementary Affidavit made on 9/10/2020;

13. There is also a Further Affidavit dated 17/03/2021 in which the applicant has annexed an Investigation Report dated the 2/02/2021 prepared by the police on the diligent search and the investigations conducted into the disappearance of the subject; the Report confirms the subject disappeared from their home in 1988 and has never been seen or heard from to date; this means that the subject has been missing for more than the statutory period of seven (7) years;

14. The applicant has now tendered sufficient material that is in compliance with the provisions of Section 118A of the Evidence Act to enable this court to make a determination on the presumption of the death of the subject;

FINDINGS & DETERMINATION

15. In the light of the forgoing this court makes the following finding and determination;

(i) The application is found to have merit and it is hereby allowed;

(ii) JOSEPH KIBIU WACHIRAthe subject herein be and is hereby presumed dead;

(iii)The Registrar of Births and Deaths do issue a Certificate of Death in respect of the said JOSEPH KIBIU WACHIRA

(iv)There shall be no order as to costs.

It is so ordered accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY DUE TO THE PANDEMIC AT NYERI THIS 17TH DAY OF JUNE, 2021.

HON. A. MSHILA

JUDGE