[2017] KEHC 4832 (KLR)
The court found that the applicant, being the wife of the missing person, and her children were persons who would be expected to have heard from John Wachiuri Gitahi if he were alive. Since he had not been in contact with any of them since 2007, and the disappearance was reported to the police and confirmed by the...
Source-derived case information.
- Citation
- [2017] KEHC 4832 (KLR)
- Parties
- Applicant: Lydia Waihuini Wachiuri; Respondent: John Wachiuri Gitahi alias Wachiuri Gitahi alias John Wachiuri alias John Wachiuri Gitahi
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 6 of 2017
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application granted. Presumption of death of John Wachiuri Gitahi ordered.
- Judges
- MM Kasango
- Legal Topics
- Presumption of Death, Evidence of Disappearance, Declaration of Death
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Waihuini Wachiuri
Applicant
John Wachiuri Gitahi alias Wachiuri Gitahi alias John Wachiuri alias John Wachiuri Gitahi
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the court should make an order of presumption of death for John Wachiuri Gitahi under section 118A of the Evidence Act.
Ratio Decidendi
The court found that the applicant, being the wife of the missing person, and her children were persons who would be expected to have heard from John Wachiuri Gitahi if he were alive. Since he had not been in contact with any of them since 2007, and the disappearance was reported to the police and confirmed by the area chief, the statutory requirements under section 118A of the Evidence Act were satisfied. The court therefore held that there was sufficient evidence to presume the death of John Wachiuri Gitahi and ordered that a certificate of death be issued.
Court Disposition
Application granted. Presumption of death of John Wachiuri Gitahi ordered.
Orders
- John Wachiuri Gitahi is hereby presumed dead.
- A certificate of death for John Wachiuri Gitahi shall issue.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
MISC CIVIL APPLICATION NO. 6 OF 2017
IN THE MATTER OF PRESUMPTION OF DEATH OF JOHN WACHIURU alias WACHIURI GITAHI
AND
IN THE MATTER OF SECTION 118A OF THE EVIDENCE ACT (CAP 80 L.O.K)
LYDIA WAIHUINI WACHIURI ……………………….............………. APPLICANT
JUDGMENT
1. LYDIA WAIHUNI WACHIURI has brought the summons dated 6th April 2017 seeking the order that this court do make an order of presumption of death of WACHIURI GITAHI alias JOHN WACHIURI alias JOHN WACHIURI GITAHI.
2. Lydiah is the wife of John Wachiuri Gitahi. In her affidavit she stated that said Wachiuri disappeared in the year 2007 and his disappearance was reported at Matanya Police Post and was recorded in the occurrence book as O.B. No. 8 of 21/1/2008. The Chief of Tigithi by his letter dated 20th June 2016 confirmed the disappearance of Gichiuri. It is in view of that long disappearance of Gitahi that his wife seeks that he be declared dead.
3. Section 118A of the Evidence Act provides:-
“Where it is proved that a person has not been heard of for 7 years by those who might be expected to have heard of him if he were alive, there shall be a rebuttal presumption that he is dead.”
4. In my view the applicant has shown that she being the wife and also her children would have been the persons Wachiuru would have been expected to hear from him. He has not been in contact with any of them since the year 2007. That being so there is a rebuttal presumption that he is dead.
5. In view of the above this court finds there is sufficient evidence to lead this court to find that there is presumption of death of John Wachiuri Gitahi. He is therefore hereby presumed dead and a certificate of his death shall issue.
DATED AND DELIVERED AT NANYUKI THIS 29TH DAY OF JUNE 2017.
MARY KASANGO
JUDGE
CORAM:
Before Justice Mary Kasango
Court Assistant – Njue/Mariastella
Applicant: Lydia Waihuini Wachiuri ……………….………….
For Applicant ……………………………………………………………
For Respondents: …..................................................
COURT
Ruling on sentence delivered in open court.
MARY KASANGO
JUDGE