[2018] KEHC 556 (KLR)
The court found that Sergeant Jonathan Kipkoskei Kangogo had not been seen or heard from by his wife or colleagues for more than seven years since his disappearance on 24th July 2011 during a military operation. The affidavits provided credible evidence of his absence and the unsuccessful efforts to trace him....
Source-derived case information.
- Citation
- [2018] KEHC 556 (KLR)
- Parties
- Applicant: Rose Jepkoech Kigen; Respondent: Attorney General (implied, representing state interests)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 158 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- application allowed
- Legal Topics
- Presumption of Death, Evidence Act Section 118a, Missing Persons, Declaratory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Jepkoech Kigen
Applicant
Attorney General (implied, representing state interests)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether the court should issue a declaration of presumption of death in respect of Sergeant Jonathan Kipkoskei Kangogo under section 118A of the Evidence Act.
Ratio Decidendi
The court found that Sergeant Jonathan Kipkoskei Kangogo had not been seen or heard from by his wife or colleagues for more than seven years since his disappearance on 24th July 2011 during a military operation. The affidavits provided credible evidence of his absence and the unsuccessful efforts to trace him. Applying section 118A of the Evidence Act, the court held that the statutory presumption of death was triggered, as the factual threshold of seven years' absence was met and there was no evidence to rebut the presumption. Accordingly, the court granted the order declaring Sergeant Kangogo presumed dead.
Court Disposition
application allowed
Orders
- 69359 Sergeant Jonathan Kipkoskei Kangogo is hereby presumed dead.
- The costs of the application be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPLICATION NO. 158 OF 2018
IN THE MATTER OF AN APPLICATION FOR DECLARATION OF PRESUMPTION OF DEATH FOR 69359 SERGEANT JONATHAN KIPKOSKEI KANGOGO
RULING
1. The Application coming for consideration in this Ruling is the one dated 8th November 2018 seeking the following orders;
(i) THAT this Court be pleased issue an order for presumption of death in respect of No. 69359 SERGEANT JONATHAN KIPKOSKEI KANGOGO.
(ii) THAT the costs of the Application be in the cause.
2. THAT Application is based on the grounds that the aforementioned No. 69359 Sergeant JONATHAN KIPKOSKEI KANGOGO who was a service member of the then Kenya Armed Forces went missing on 24. 7.2011 while escorting stocks from Wajir to Liboi during operation Linda Inchi and it has been more than 7 years since he went missing.
3. The Application is supported by Affidavit of ROSE JEPKOECH KIGEN and MAJOR ANTONY MANYARA MWITI both sworn on 8th November, 2018.
4. It is deposed in the Affidavit by ROSE JEPKOECH KIGEN that she is the wife to SERGEANT JONATHAN KIPKOSKEI KANGOGO and that she had not seen or heard from him since 24. 7.2011.
5. The Affidavit of MAJOR ANTONY MANYARA MWITI also states that the said SERGEANT JONATHAN KIPKOSKEI KANGOGO went missing on 24th July 2011 while escorting stores to Liboi during operation Linda Inchi.
6. Further it is deposed by MAJOR ANTONY MANYARA that the driver of the truck which SERGEANT JONATHAN KIPKOSKEI KANGOGO was aboard mistakenly took the route towards Diff, Somalia and efforts to trace him have borne no fruits due to the security situation in Somalia
7. I have considered Application filed herein. I find that the issue of presumption of death is one which only the Court can determine.
8. This application was brought under section 118 A of the Evidence Act (cap 80). Section 118A of the Evidence Act provides as follows:-
“118A 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.”
9. In the current case, there is evidence that the said Sergeant Jonathan Kipkoskei Kangogo has not been seen or heard from by those who are supposed to hear from him for more than 12 years.
10. The wife of the said Sergeant Kangogo and Major Antony Manyara who was working with him swore Affidavits which this Court has relied on. I find that there is evidence that it is now more than 7 years since the said SERGEANT JONATHAN KIPKOSKEI KANGOGO went missing.
11. I accordingly allow the Application dated 8. 11. 2018 and I order that the said 69359 Sergeant JONATHAN KIPKOSKEI KANGOGO be and is hereby presumed dead.
The costs of the Application be in the cause.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 18THDAY OF DECEMBER 2018
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI
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