[2005] KEHC 190 (KLR)
The court found that the applicant failed to annex the police abstract of the missing person and did not provide particulars of the public announcements made regarding the disappearance of Jackson Kipkurui Chebii. In the absence of these crucial pieces of evidence, the court was not satisfied that the requirements...
Source-derived case information.
- Citation
- [2005] KEHC 190 (KLR)
- Parties
- Applicant: Kabon Taptuei Chepkochoch; Respondent: Jackson Kipkurui Chebii
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 246 of 2004
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Sufficiency of Evidence for Presumption of Death
- Outcome
- Application stood over generally to allow filing of further affidavit; no declaration made.
- Legal Topics
- Presumption of Death, Missing Persons, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kabon Taptuei Chepkochoch
Applicant
Jackson Kipkurui Chebii
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Sufficiency of Evidence for Presumption of Death
Legal Issues
- 1 Whether sufficient evidence has been provided to presume Jackson Kipkurui Chebii as dead under Section 118A of the Evidence Act.
- 2 Whether the absence of a police abstract and particulars of public announcements precludes the granting of the application.
Ratio Decidendi
The court found that the applicant failed to annex the police abstract of the missing person and did not provide particulars of the public announcements made regarding the disappearance of Jackson Kipkurui Chebii. In the absence of these crucial pieces of evidence, the court was not satisfied that the requirements for presumption of death under Section 118A of the Evidence Act had been met. The court therefore declined to make the declaration sought and allowed the applicant to file a further affidavit addressing the evidentiary gaps before a substantive ruling could be made.
Court Disposition
Application stood over generally to allow filing of further affidavit; no declaration made.
Orders
- Applicant granted leave to file a further affidavit addressing missing police abstract and particulars of public announcements.
- Matter stood over generally pending compliance.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Misc Civ Appli 246 of 2004
IN THE MATTER OF JACKSON KIPKURUI CHEBII
AND
IN THE MATTER OF KABON TAPTUEI CHEPKOCHOCH ..…….APPLICANT
RULING
I have considered the Notice of Motion brought under Order 50 rule 1 of the Civil Procedure Rules and Section 118A of the Evidence Act (Cap.80) and the two supporting affidavits by Margaret Chebii and Kabon Taptuei Chepkochoch a sister and mother respectively of Jackson Kipkurui Chebii. I have also considered the submissions of counsel for the applicant Kabon Taptuei Chepkochoch.
The police abstract of a missing person mentioned in paragraph 9 of the affidavit of Margaret Chebii is not annexed to the affidavit. Nor have particulars been given in paragraph 10 of the said affidavit on the modes of public announcements that have been made on the disappearance of the said Jackson Kipkurui Chebii.
In those circumstances, I am not able to declare that Jackson Kipkurui Chebii be presumed as dead. Therefore, I allow a further affidavit to be filed to address the above issues, before I can make a ruling on the request by the applicant. The matter is marked as stood over generally.
Dated at Eldoret this 1st Day of March 2005
George Dulu
Ag. Judge
In the Presence of:
Mrs. Mutai holding brief for Mrs. Kittony for Applicant