[2009] KEHC 4184 (KLR)
The court found that Harrison Mwicharo Githogori had been missing for more than seven years, as evidenced by police reports and a newspaper advertisement. Under section 118A of the Evidence Act, such prolonged absence without communication to those who would naturally have heard from him justifies the legal...
Source-derived case information.
- Citation
- [2009] KEHC 4184 (KLR)
- Parties
- Applicant: Mary Nyokabi Githongori; Respondent: Harrison Mwicharo Githogori
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 36 of 2008
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application granted
- Legal Topics
- Presumption of Death, Missing Persons, Issuance of Death Certificate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nyokabi Githongori
Applicant
Harrison Mwicharo Githogori
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether Harrison Mwicharo Githogori can be legally presumed dead under section 118A of the Evidence Act after being missing for over seven years.
- 2 Whether the applicant is entitled to an order for issuance of a death certificate for the missing person.
Ratio Decidendi
The court found that Harrison Mwicharo Githogori had been missing for more than seven years, as evidenced by police reports and a newspaper advertisement. Under section 118A of the Evidence Act, such prolonged absence without communication to those who would naturally have heard from him justifies the legal presumption of death. The court was satisfied that all reasonable steps had been taken to trace the missing person and that the requirements of the law had been met. Consequently, the court granted the order sought, declaring Harrison Mwicharo Githogori presumed dead and directing the issuance of a death certificate.
Court Disposition
application granted
Orders
- Harrison Mwicharo Githogori is hereby presumed dead and a death certificate should be issued.
- Costs in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Miscellaneous Application 36 of 2008
IN THE MATTER OF SECTION 118 OF TH EVIDENCE ACT CAP 80, LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION BY MARY NYOKABI GITHONGORI
AND
IN THE MATTER OF HARRISON MWICHARO GITHOGORI (PRESUMED DECEASED)
J U D G M E N T
Before me is an Originating Summons dated 5th June, 2008 filed by Ms Mwagambo & Okonjo advocates for the applicant. It was brought under section 118A of the Evidence Act (Cap. 80),Order XXXVI Rule 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap. 21). It was filed on behalf of the applicant MARY NYOKABI GITHOGORI.
The substantive order sought is that the husband of the applicant MR. HARRISON MWICHARO GITHOGORI, be presumed dead and a death certificate be issued.
I have considered the application, documents filed as well as what was stated by the applicant before me. There are reports from the police, one from Thika Police Station dated 28th January, 2001, one from Kikuyu Police Station dated 15th March, 2004, and one from Kikuyu Police Station dated 23rd June, 2009 confirming that the husband of the applicant disappeared in 2001. There is also a report of a missing person and photograph of the subject person herein advertised in the Daily Nation of 24th January, 2001.
The subject person has clearly been missing and has not been traced for more than seven (7) years. He can be presumed dead under our law. I will therefore grant the orders sought.
Consequently, I order as follows-
1. MR. HARRISON MWICHARO GITHOGORI be and is
hereby presumed dead and a death certificate should be issued.
2. Costs in the cause.
Dated at Nairobi this 19th day of November, 2009.
George Dulu
Judge.