[2022] KEHC 863 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO 599 OF 2015

IN THE MATTER OF THE ESTATE OF WILLIAM OMONDI OMER (DECEASED)

JAMES AMATA NYABWA............................................................................................APPLICANT

VERSUS

REGISTRAR OF BIRTHS AND DEATHS AWASI SUB-COUNTY.....................RESPONDENT

RULING

INTRODUCTION

1. In his Notice of Motion dated 24th July 2020 and filed on 27th July 2020, the Applicant herein sought orders that this court do order the Registrar of Births and Deaths, Awasi to show cause why he had refused to issue him with a Death Certificate. He also prayed for an order directing the aforesaid Registrar of Births and Deaths to issue a Certificate of Death in respect of William Amondi Omer (hereinafter referred to as “the deceased”). He swore an affidavit in support of his present application on 24th July 2020.

2. The Applicant’s case was that his brother Joseph Omer Nyabwa acquired the Parcel No Muhoroni/064/298 & 698 (hereinafter referred to as “the subject properties”) from the Government of Kenya on 18th July 1966 and registered them in the name of the deceased. The said parcels of land were thereafter sold to Nobias Minda Okumu, who paid monies that were outstanding to Kenya Government and Sugar Development Loan Fund and was issued with an allotment letter.

3. It was his contention that both his brother and the deceased died in Tanzania but that their efforts to obtain their death certificates from the Government of Tanzania had been futile. In particular, he stated that the deceased died on 25th March 2014.

4. He contended that he filed an application to have the deceased presumed dead having not been seen or heard from for more than eleven (11) years, which application was allowed and an order issued to the Registrar of Deaths and Births, Awasi Sub-County directing him to issue him with a Certificate of Death. He stated that the said order was served on the Registrar of Births and Deaths but the said Registrar of Births and Deaths refused to abide by the court order.

5. He further averred that HCCC No 360 of 1996 had been pending before the High Court and that although his brother and the deceased were summoned through East Africa Standard to appear in court, they did not do so.

6. He asserted that he was the only surviving relative of his brother and the deceased and wished to transfer the subject properties parcel that were sold to the said Nobias Minda but which he could not do so unless the court granted him the orders he had sought in his present application.

7. In opposition to the said application, on 18th September 2020, C. A Onyango, a Civil Registration Officer in Civil Registration Services, Ministry of Interior and Coordination of National Government swore a Replying Affidavit on behalf of the Respondent herein. The same was filed on 21st September 2020.

8. The Respondent’s case was that Section 16 of the Births and Deaths Registration Act Cap 149 (Laws of Kenya) provided for the requirements and process for registration of a death and issuance of a burial permit which process was not adhered to in the instant case. He argued that save for the date of death, the Applicant failed to supply the particulars as per Section 26(2) and (4)(sic).

9. He was emphatic that this was a case of death of a citizen of Kenya occurring outside Kenya and was not of a presumption of death and pointed out that Section 16A (sic) provided for the requirements and procedure guiding the registration of a death of a citizen of Kenya occurring outside Kenya and consequent issuance of a death certificate of a citizen of Kenya occurring abroad. He was categorical that the Applicant had failed to comply with the aforesaid requirements.

10. He contended that his department was ready to issue the Applicant with the deceased’s death certificate upon him complying with the provisions of Section 16A of the Act.

11. The Applicant’s Written Submissions were dated and filed on 27th July 2021 while those of the Respondent were dated 16th February 2021 and filed on 18th February 2021.

12. This Ruling is based on the said Written Submissions which both parties relied upon in their entirety.

LEGAL ANALYSIS

13. The Applicant submitted that he was desirous of commencing succession proceedings in the Estate of the said William Amondi Omer but had been prevented from doing so unless he produced the deceased’s death certificate.

14. The Respondent placed reliance on the case of Kerugoya Miscellaneous Succession No 9 of 2014 Mary Ngima Karaba (Applicant) (In the matter of the Estate of Kumbi Mukunaruku (deceased) 2014 eKLR) where Githua J held that a letter from the chief of the place where a deceased hailed from was sufficient to meet the requirements of Rule 7(2) of the Probate and Administration Rules. He therefore argued that the Applicant should provide evidence of death from the Chief of the area in Tanzania where the deceased died. He urged the court to dismiss the Applicant’s application with costs and order for full compliance of the procedures provided by law.

15. Notably Section 16 of the Births and Deaths Registration Act states that:-

“Every person notifying a death shall, to the best of his knowledge and ability, give the prescribed particulars which shall be entered forthwith by the registrar in the register, and the person notifying the death shall certify to the correctness of the entry by signing or, if he is illiterate, by fixing his mark to the register.”

16. Further, Section 16A of the said Births and Deaths Registration Act provides that:-

1. A person notifying the death of a citizen of Kenya outside Kenya shall produce to the registrar the following evidence of the death-

a. Firstly, either-

i. a certificate of death issued by the appropriate authority in the country abroad, with an English translation of the certificate if it is not in English; or

ii. if certificates of death are not issued in the country abroad, a certificate of the death given by the medical attendant or other person who attended the death; and

b. secondly, either-

i. if there is a Kenya Mission in the country abroad, a certificate of a member of the Mission that he is satisfied, from evidence produced to him and inquiries which he has made, that the particulars of the death given in the death certificate are correct; or

ii. if there is no Kenya Mission in the country, such other evidence as the registrar may requireand the person notifying the death shall certify in writing to the registrar the correctness and authenticity of the evidence which he produces.

2. Upon receiving the evidence required by subsection (1) of this section to be produced, the registrar shall forthwith enter the prescribed particulars of the death in the register of deaths occurring outside Kenya.

17. This court perused the letter dated 27th November 2019 by the Chief of Muhoroni Location and noted that the same did not meet the conditions set in Section 16A of the Births and Deaths Registration Act. It was issued by a Kenyan authority and not the relevant entity from Tanzania where the deceased was said to have died on 25th March 2014. In other words, the competent authority to have confirmed the deceased’s death would have been from Tanzania and not from the Chief at Muhoroni as he could not with certainty or authoritatively verify that the deceased indeed died as aforesaid.

18. In view of the fact that the Applicant was certain of the deceased’s date of death, nothing would have been easier than for him to have provided proof that the deceased indeed died on the said date and the place of death to enable the Respondent make the relevant entries and issue a Certificate of Death. If the death was unreported, that was information that could only have been given by the relevant authority in Tanzania.

19. This court further found itself in difficulties on the order to give as the Applicant had already obtained an order from the Chief Magistrate’s Court at Kisumu Misc Civil Application No 165 of 2018 in which the deceased was presumed dead and an order made to the Respondent to issue the Applicant herein with a Death Certificate.

20. Notably, Section 118A of the Evidence Act Cap 80 (Laws of Kenya) stipulates that:-

“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.”

21. It is not clear whether the Applicant disclosed that he knew that the deceased died on 25th March 2014 before the subordinate court presumed the deceased to have been dead as the application seeking the said orders was not placed before this court.

22. Suffice it to state that once the date of the deceased’s death was known, his death could not be presumed as it was a fact that he died on a particular date and at a particular place.

23. Against the backdrop that the Applicant knew the date of the deceased’s death, this court found and held that the Applicant did not give the prescribed particulars to be entered in the register as provided for under Section 16 and 16A of the Births and Deaths Registration Act and had not therefore demonstrated that he had met conditions for the granting of the orders that he had sought.

DISPOSITION

24. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 24th July 2020 and filed on 27th July 2020 was not merited and the same be and is hereby dismissed.

25. As the Respondent is a government entity, the court deviated from the main principle that costs follow the event and hereby directs that there will be no costs awarded herein.

26. It is so ordered.

DATED AND DELIVERED AT KISUMU ON THIS 28TH DAY OF MARCH 2022

J. KAMAU

JUDGE