[2019] KEHC 1026 (KLR)
The court found that Francis Ariong’ Apoo has been missing for over eight years, with no contact or evidence of life, despite diligent search and police involvement. The affidavits from the applicant and her daughter, together with the circumstances of his disappearance, satisfy the legal threshold for presumption...
Source-derived case information.
- Citation
- [2019] KEHC 1026 (KLR)
- Parties
- Applicant: Esther Lapiyo
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 18 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Presumption of Death, Declaration of Death, Missing Persons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Lapiyo
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should presume Francis Ariong’ Apoo dead after over 8 years of disappearance.
- 2 Whether sufficient evidence has been provided to justify the presumption of death.
Ratio Decidendi
The court found that Francis Ariong’ Apoo has been missing for over eight years, with no contact or evidence of life, despite diligent search and police involvement. The affidavits from the applicant and her daughter, together with the circumstances of his disappearance, satisfy the legal threshold for presumption of death. The court applied the common law and statutory principles regarding presumption of death, concluding that the applicant had provided sufficient evidence to warrant the orders sought. The court therefore presumed Francis Ariong’ Apoo dead and directed the Registrar of Deaths to issue a death certificate.
Court Disposition
application allowed
Orders
- Francis Ariong’ Apoo (ID NO 0611066) is hereby presumed dead.
- The Registrar of Deaths is directed to issue a death certificate in respect to Francis Ariong’ Apoo.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
MISC. CIVIL APPLICATION NO 18 OF 2019
IN THE MATTER OF AN APPLICATION FOR PRESUMPTION OF DEATH OF FRANCIS ARIONG’ APOO
ESTHER LAPIYO.................................................................................APPLICANT
R U L I N G
1. This is an application for presumption of death in respect to one FRANCIS ARIONG’ APOO (hereinafter called the Subject). The application is brought by his wife, ESTHER LAPIYO (the Applicant).
2. I have read the two affidavits sworn and filed in support of the application. One affidavit is by the Applicant and the second one by a daughter of the Applicant and the subject called ISABEL ARIONG’. I have also perused all the documents annexed to these affidavits.
3. The Subject was an officer with the Kenya Army then attached to the Isiolo Armoured Brigade. It is said that on the 23/10/2011 he went to visit his army friend, one JOSEPH LOKINYAT, at a place called Epialing where both were attacked by a group of people from a hostile community. They fled in different directions. Joseph Lokinyat escaped but the Subject was never seen again alive or dead.
4. Joseph Lokinyat reported the matter at Isiolo Police Station. A search was mounted for the Subject but he was never found, dead or alive. It is presumed that he was killed by the hostile community and his body either destroyed or left in the bush where it was eaten by wild animals.
5. It has now been over 8 years since the Subject was last seen or heard of or from by his wife or children, or others who might be expected to have seen or heard from or of him.
6. Upon the material now before the court, I have no hesitation at all in allowing the application in the following terms –
i) FRANCIS ARIONG’ APOO (ID NO 0611066) is hereby presumed dead.
ii) The Registrar of Deaths is hereby directed to issue a death certificate in respect to the said FRANCIS ARIONG’ APOO.
It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 4TH DAY OF DECEMBER 2019
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 5TH DAY OF DECEMBER 2019