[2003] KEHC 206 (KLR)
The court found that the applicant had provided credible and sufficient evidence that Micah Ouma Oriaso had disappeared without trace since 12th June 1997, and that neither his family nor employer had heard from him for over ten years. Applying Section 118A of the Evidence Act, the court held that the statutory...
Source-derived case information.
- Citation
- [2003] KEHC 206 (KLR)
- Parties
- Applicant: Margaret Eunice Oriaso; Respondent: Micah Ouma Oriaso aka Micah M. Oriaso
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 13 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Originating Summons
- Outcome
- application granted
- Legal Topics
- Presumption of Death, Originating Summons, Evidence of Disappearance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Eunice Oriaso
Applicant
Micah Ouma Oriaso aka Micah M. Oriaso
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Originating Summons
Legal Issues
- 1 Whether the applicant has established sufficient grounds for the court to presume the disappearance and death of Micah Ouma Oriaso under Section 118A of the Evidence Act.
- 2 Whether a death certificate should be issued in respect of Micah Ouma Oriaso.
Ratio Decidendi
The court found that the applicant had provided credible and sufficient evidence that Micah Ouma Oriaso had disappeared without trace since 12th June 1997, and that neither his family nor employer had heard from him for over ten years. Applying Section 118A of the Evidence Act, the court held that the statutory presumption of death was triggered. The court was satisfied that the requirements for presumption of death had been met and therefore ordered that a death certificate be issued to the applicant. The court also noted that the costs of the application would be in the cause.
Court Disposition
application granted
Orders
- A certificate of death for Micah Ouma Oriaso is to be issued to the applicant by the relevant authorities.
- The costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA MISC. CIVIL APPLI. NO. 13 OF 2003 (O.S.)
IN THE MATTER OF AN APPLICATION BY MARGRET EUNICE ORIASO
AND
IN THE MATTER OF MICAH OUMA ORIASO AKA MICAH M. ORIASO (PRESUMED DECEASED)
R U L I N G
The applicant, MARGARET EUNICE ORIASO has applied Ex-parte by way of originating Summons for the issuance of an order under the provisions of Section 118A of the Evidence Act and Section 3A of the Civil Procedure Act and order 36 rule 7 to the effect that her husband MICAH OUMA ORIASO also known as MICAH M. ORIASO be presumed dead and a death certificate issued.
The application is supported by Affidavit sworn by Margaret Eunice Oriaso sworn on 27. 1.2003. She has deponed that her Husband was working for Kenya Ports Authority as a Marine Pilot and his duties involved commanding vessels in the Indian Ocean to and from the Port of Mombasa. On the morning of 9th June, 1997 Mr. Oriaso was assigned to work on board “M.V. AMFAH 1” as the master with a crew of 11 others and the vessel left Mombasa for the Port of MASSAWA in ERITREA. According to a inquiry report into his disappearance carried out by the Mr. F.O. Wahutu an Assistant Merchant Shipping Superintendent employed by Kenya Ports Authority, Mr. Oriaso was reported as being unwell on the afternoon of 9. 6.97. He is reported to have been suffering from stomach and malaria related illness. His Vision was blurring and he was being haunted by people only he could see. This state of affairs prevailed through the 10. 6.92 and 11. 6.92.
At midnight of the 11. 6.97, Mr. Oriaso was relieved from his watch and he left the wheel house and was seen by Mr. Kombo M. Haji an Oiler at around 2. 35 a.m. walking from the direction of his cabin and he failed to respond to greeting. Mr. Kombo then noticed that Mr. Oriaso instead of going to the direction of the officers mess, he walked out onto the starboard outboard alleyway and Kombo followed. He, Mr. Kombo enquired from Mr. Oriaso where he was going but received no reply. Kombo then held Oriaso by the arm and called for help from the Chief Officer at which point Oriaso pushed Kombo onto the deck and continued walking forward. Kombo got up and went to get help from the others in the wheel house but a search yielded no result and was called off at 2. 00 p.m. on 12. 6.96.
The results of the inquiry also show that crew members had admitted that they were aware Mr. Oriaso was diabetic and hypertensive and he carried his own medication and that he had alerted them to keep watch over him incase his condition in case he jumped overboard.
However Mr. Wahutu in conclusion blames the either crew and finds their behaviour unacceptable. He even suggests that records of entries in be heard from or about since his disappearance. Section 118A of the Evidence Act 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 reputable presumption that he is dead”
The applicant is the legal wife of Mr. Oriaso and neither she nor his employer have heard from or seen him since the 12. 6.92. From the material before me, I am satisfied that Mr. Micah M. Oriaso has gone missing without trace in the Indian Ocean since 12. 6.92 to date it is therefore to be presumed he is dead as a period of over 10 years has gone by. A certificate of Death is to be issued to the Applicant by the relevant authorities. The costs of the application shall in the cause.
Dated and Delivered at Mombasa this 13th day of March, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE