[2010] KEHC 393 (KLR)
The court found that Tom Obuon Obuon had been missing for over 14 years, which is more than double the statutory period required for a presumption of death under Section 118A of the Evidence Act. The applicants, his parents, demonstrated that they had exercised all due diligence in searching for him, including...
Source-derived case information.
- Citation
- [2010] KEHC 393 (KLR)
- Parties
- Applicant: Daniel Obuon Obuon; Applicant: Monica Ochola Obuon
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 57”B” of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Presumption of Death
- Outcome
- application granted
- Legal Topics
- Presumption of Death, Missing Persons, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Obuon Obuon
Applicant
Monica Ochola Obuon
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether the court should presume Tom Obuon Obuon dead after his disappearance for over 14 years.
- 2 Whether a certificate of presumption of death should issue under the relevant statutory provisions.
Ratio Decidendi
The court found that Tom Obuon Obuon had been missing for over 14 years, which is more than double the statutory period required for a presumption of death under Section 118A of the Evidence Act. The applicants, his parents, demonstrated that they had exercised all due diligence in searching for him, including making police reports, hospital inquiries, and public appeals, all of which yielded no results. The court held that the legal threshold for presumption of death had been met and that it was expedient and just to grant the orders sought. Accordingly, the application for presumption of death was allowed, and the court ordered the issuance of a certificate of presumption of death.
Court Disposition
application granted
Orders
- An order is issued presuming Tom Obuon Obuon dead.
- A certificate of presumption of death of Tom Obuon Obuon to issue accordingly.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCC. CAUSE NO. 57”B” OF 2009
IN THE MATTER OF THE ESTATE OF – TOM OBUON OBUON – DECEASED
AND
DANIEL OBUON OBUON &
MONICA OCHOLA OBUON :::::::::::::::::::::::::::::::::::::::::::::: PETITIONERS
RULING:
Before court is an application by way of summons brought under Rule 10 of the Probate And Administration Rules, Section 17 of the Births and Deaths Registration Act, Cap 148 of the Laws of Kenya, seeking for an order presuming death of one Tom Obuon Obuon, on account of his disappearance or absence for a continuous period of over 14 years since 10th August, 1995 and for issuance of a certificate of death. The application supported by the affidavit of Daniel Obuon Obuonthe father of Tom Obuon Obuon.
The application is based on the ground that Tom Obuon Obuonwas last seen alive on 10th August, 1995 and since then (14 years ago) he has not been heard of by people close to him including the applicants who are his parents. That all inquiries have been made without any results and therefore it would be expedient in the circumstances for an order to issue presuming death of the said Tom Obuon Obuon.
The first applicant the father of Tom Obuon Obuon, Mr. Daniel Obuon Obuongave evidence in support of the application.
For determination before court is whether the court should presume Tom Obuon Obuondead and issue a certificate of presumption of death.
Section 118A of the Evidence Act, Chapter 80 of the Laws of Kenya provides:-
“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 was alive, there shall be a rebuttable presumption that he is dead.”
From the closest relatives; the parents of the deceased, he was last seen alive at his place of residence Nairobi South B, on the 10th of August, 1995. His father first got information of his disappearance on the 18th of August, 1995 from one of his other sons John Obuon.The father has since the 20th of August, 1995 made efforts to trace his son but all in vain he visited Kenyatta National Hospital and City Mortuary on the 20th of August, 1995, reported to Tom’ssupervisor’s at work and officially made a report to Langata Police Station on the 21st of August, 1995. On the 22nd of August, 1995, he formally reported the disappearance to the C.I.D Training School. He thereafter followed up the reports with the above institution as he also visited other private hospitals to see if his son was admitted in any one of them. On 27th of August, 1995 he went to the Police headquarters where he was given a police officer and in the Company of the said police officer, he visited city mortuary for a further search to no avail.
On the 25th of April, 2005 the 1st applicant appealed to the public to assist in tracing his son through the Standard Newspaper. All the above effort having failed, the applicants seek for an order presumption of death.
14 years is twice the period permissible in law for one to be presumed dead. From the evidence on record all due diligence has been conducted by the applicants in searching for their son and in view of the application and provision of the Law, the application dated 18th March, 2009 is granted in the following terms.
1. An order be and is hereby issued presuming one Tom Obuon Obuondead.
2. A certificate of presumption of death of the said Tom Obuon Obuondo issue accordingly.
3. Costs in the cause.
DATED AND DELIVERED THIS 26TH NOVEMBER, 2010.
ALI-ARONI
JUDGE
In the presence of:
………………… present for defendant/petitioner
………………… present for objectors/applicant