[2022] KEHC 2501 (KLR)
The court found that Jonathan Imbugwa Mahira had not been heard from since 2013, a period exceeding the statutory seven years required for a presumption of death under section 118 of the Evidence Act. The applicant provided credible evidence, including police reports and affidavits from close relatives, confirming...
Source-derived case information.
- Citation
- [2022] KEHC 2501 (KLR)
- Parties
- Applicant: Francis Chore Mahira
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E096 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- DN Musyoka
- Legal Topics
- Presumption of Death, Missing Persons, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Chore Mahira
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should declare Jonathan Imbugwa Mahira presumed dead under section 118 of the Evidence Act.
- 2 Whether sufficient evidence exists to support the presumption of death.
Ratio Decidendi
The court found that Jonathan Imbugwa Mahira had not been heard from since 2013, a period exceeding the statutory seven years required for a presumption of death under section 118 of the Evidence Act. The applicant provided credible evidence, including police reports and affidavits from close relatives, confirming exhaustive but unsuccessful efforts to trace the subject. The court was satisfied that the legal threshold for presumption of death had been met, and thus granted the application for a declaration of death to facilitate the administration of the deceased estate in the related succession cause.
Court Disposition
application allowed
Orders
- The application for presumption of death is allowed as prayed.
- The file in Kakamega HCSC No. 880 of 2007 to be returned to the probate registry.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CIVIL APPLICATION NO. E096 OF 2021
FRANCIS CHORE MAHIRA...................................APPLICANT
RULING
1. This an ex parte application brought under section 118 of the Evidence Act, Cap 80, Laws of Kenya. It seeks a declaration that one Jonathan Imbugwa Mahira, who I shall refer hereafter as the subject, be presumed dead and a death certificate issued.
2. The applicant avers that the subject was his brother, and that he left home in 2013, for an unknown place, in search of employment. He never came back. They searched for him in neighbouring countries, to no avail. They reported the matter at the Kilingili Police Station. He has attached to his affidavit, affidavits by his brothers James Mulemi Mukuru and Jonathan Kisibo Kesenwa to confirm the same.
3. The annexures to his affidavits include a letter from the police, the Kilingili Police Station, dated 5th December 2019, which confirms that the police received the report of a missing person and booked it as OB/11/5/12/2019. An abstract from the same station, dated 13th July 2021, indicates that the report was made by the applicant herein, by lodging an affidavit sworn on 13th September 2012 to that effect.
4. These proceedings were provoked by orders that I had made in Kakamega HCSC No. 880 of 2007, in the matter of the estate of Ephraim Mahila Imbugwa. The subject was one of the sons of the deceased in that succession cause, and had been appointed one of the administrators of the estate. The other administrators had approached the court to have the subject removed as an administrator and as beneficiary, to facilitate distribution of the estate. I declined, as they had no proof that he was dead, nor an order declaring him dead.
5. From the material in the application before me, I am satisfied that that the subject has not been heard of since 2013, which some nine years today. I shall accordingly allow the said application as prayed. Let the file in Kakamega HCSC No. 880 of 2007 be returned to the probate registry. I note that the estate is situate in Vihiga, and, therefore, the file should, thereafter, be placed before me so that I can make the relevant transfer order.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4th DAY OF February. 2022
W. MUSYOKA
JUDGE