[2016] KEHC 3596 (KLR)
The court found credible evidence that Nyaga Kamwana had not been seen or heard from since 1991, a period exceeding 25 years. Applying section 118A of the Evidence Act, the court held that there is a rebuttable presumption of death where a person has not been heard of for seven years by those who would be expected...
Source-derived case information.
- Citation
- [2016] KEHC 3596 (KLR)
- Parties
- Applicant: Jacinta Wangiri Nyaga; Respondent: Nyaga Kamwana
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 72 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Presumption of Death
- Outcome
- Application partly allowed.
- Legal Topics
- Presumption of Death, Evidence of Disappearance, Succession Procedure, Registration of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wangiri Nyaga
Applicant
Nyaga Kamwana
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Presumption of Death
Legal Issues
- 1 Whether Nyaga Kamwana should be presumed dead under section 118A of the Evidence Act.
- 2 Whether the applicant is entitled to be registered as the owner of the land registered in the name of Nyaga Kamwana without succession proceedings.
Ratio Decidendi
The court found credible evidence that Nyaga Kamwana had not been seen or heard from since 1991, a period exceeding 25 years. Applying section 118A of the Evidence Act, the court held that there is a rebuttable presumption of death where a person has not been heard of for seven years by those who would be expected to have heard from him if alive. The court therefore granted the prayer for presumption of death. However, the court declined to order registration of the land in the applicant's name, holding that such transmission of property must be done through succession proceedings as provided under the Law of Succession Act, which ensures orderly transfer of property and protection of...
Court Disposition
Application partly allowed.
Orders
- Nyaga Kamwana is presumed dead under section 118A of the Evidence Act.
- The prayer for registration of land in the applicant's name is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC CIVIL APP 72 OF 2016
IN THE MATTER OF PRESUMPTION OF DEATH
IN THE MATTER OF NYAGA KAMWANA
JACINTA WANGIRI NYAGA................................................APPLICANT
RULING
1. This application was brought under certificate of urgency through a notice of motion dated 11th May 2016. It is an ex-parte application seeking that one Nyaga Kamwana be presumed to have died by virtue of not having been seen since 1991.
2. The application is grounded on the applicant's supporting affidavit of 11th May 2016. The applicant has deponed that she is the biological daughter of Nyaga Kamwana, who disappeared in 1991 and has not been seen to-date. She has further deponed that her father was the registered owner of land parcel No. Ngandori/kirigi/T-149, where she lives with other family members. She has also deponed that they have been looking for their father without any success and they fear that somebody may take advantage of the prevailing position.
3. It is also her affidavit evidence that her mother reported the disappearance of Nyaga Kamwana to the administrative chief but she died while doing so. Furthermore, she has also deponed that there was a civil case being Embu Resident Magistrate's Court civil suit No. 17 of 76 between Michael Njagi Ndwiga and Nyaga Kamwana, in which land parcel No. Ngandori/Kirigi/T-149 was restricted on the application of Michael Njagi Ndwiga, who was the decree holder. She has also deponed that her father discharged the debt owed to the judgement decree. As a result, the decree holder wrote a letter dated 10th October 1981 in which he indicated that his debt of Kshs 2,000/- had been discharged, by the said Nyaga Kamwana which letter is annexed to the supporting affidavit as annex “J.W.M.4”.
4. Finally, she seeks an order of the court that the Land Registrar be ordered to register the land in the name of the applicant.
5. I find that the application is by its very nature is unopposed. I believe that Nyaga Kamwana has not been seen since 1991, which is over 25 years up to date.
6. The provisions that govern the presumption of death are found in section 118A of the Evidence Act (Cap 80) Laws of Kenya. That section 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”.
7. In the light of the evidence which I find credible that Nyaga Kamwana has not been seen for the last over 25 years and the fact that the law presumes that somebody who has not been seen for the last seven years should be presumed dead, I hereby grant the applicant's prayer that Nyaga Kamwana is dead in terms of section 118A of the Evidence Act.
8. However, I am not able to grant the prayer that the applicant be registered as the owner of her father's land. If this is desired to be done, it has to undergo the process of succession in terms of the Law of Succession Act (Cap 160) Laws of Kenya. The Law of Succession caters for those who intend to inherit the estate of those who are dead. It provides for an orderly transmission of property to the rightful beneficiaries. It also provides a forum for creditors to satisfy what they are owed.
9. I therefore only allow the applicant's prayer that Nyaga Kamwana be presumed dead. I dismiss the applicant's prayer that she be registered as the owner of the land which is registered in the name of Nyaga Kamwana.
10. There will be no orders to costs as this is an ex-parteapplicant.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this6thday of JULY 2016
In the presence of the applicant
Court clerk Njue
J.M. BWONWONGA
JUDGE
06. 07. 16