[2018] KEHC 9450 (KLR)
The court found that Kimani Gituanja had not been heard of since 1996 and that the applicants had made diligent efforts to locate him, including reporting to the police. The police confirmed the missing status. There was no opposition to the application, and interested parties did not object. The court held that the...
Source-derived case information.
- Citation
- [2018] KEHC 9450 (KLR)
- Parties
- Applicant: Michael Mungai Kimani, Stephen Njugunaa Kimani, Eliud Mbugua Kimani, John Chege Kimani, James Waititu Kimani, Dennis Muriithi Kimani and George Njoroge Kimani; Respondent: Kimani Gituanja (subject of application)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 23 of 2012
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed in part; presumption of death granted; preservation order declined.
- 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
Michael Mungai Kimani, Stephen Njugunaa Kimani, Eliud Mbugua Kimani, John Chege Kimani, James Waititu Kimani, Dennis Muriithi Kimani and George Njoroge Kimani
Applicant
Kimani Gituanja (subject of application)
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the court should grant a presumption of death in respect of Kimani Gituanja.
- 2 Whether the court should order preservation of Kabete/Nyathuna/53 pending further orders.
Ratio Decidendi
The court found that Kimani Gituanja had not been heard of since 1996 and that the applicants had made diligent efforts to locate him, including reporting to the police. The police confirmed the missing status. There was no opposition to the application, and interested parties did not object. The court held that the requirements for presumption of death under Section 118A of the Evidence Act were satisfied. However, the court declined to grant the preservation order for Kabete/Nyathuna/53, holding that such relief was not available under the cited legal provisions, which only allow for the presumption of death. The court allowed the application to the extent of granting the presumption of...
Court Disposition
Application allowed in part; presumption of death granted; preservation order declined.
Orders
- The application dated 13th February 2012 is allowed in terms of prayer 1: presumption of death of Kimani Gituanja is granted.
- Prayer 2 for preservation of Kabete/Nyathuna/53 is declined.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISCELLANEOUS CIVIL APPLICATION NO. 23 OF 2012 (OS)
(CONSOLIDATED WITH MISCELLANEOUS CIVIL APPLICATION NO. 93 OF 2013)
IN THE MATTER OF AN APPLICATION BY MICHAEL MUNGAI KIMANI, STEPHEN NJUGUNAA KIMANI, ELIUD MBUGUA KIMANI, JOHN CHEGE KIMANI, JAMES WAITITU KIMANI, DENNIS MURIITHI KIMANI AND GEORGE NJOROGE KIMANI THE PETITONER UNDER SECTION 18(A) OF EVIDNCE ACT AND RULE 10 OF THE PROBATE AND ADMINISTRATION RULES
JUDGMENT
1. The suit herein, by way of Originating Summons dated 13th February 2012, seeks two orders, a presumption of the death of Kimani Gituanja and preservation of Kabete/Nyathuna/53 pending further orders.
2. The affidavit in support is sworn jointly by the applicants, on 13th February 2012. They principally state that Kimani Gituanja has not been heard of since 15th December 1996, and that they have made reports to that effect to the police. They thereafter make averments on his assets and a pending suit, which are no altogether relevant to the proceedings before me.
3. Attached to the affidavit is a letter from the police dated 22nd December 1999, confirming that the said Kimani Gituanja was reported missing in 1996 and that as at the date they were writing his whereabouts were still unknown. It would appear that a second report of the disappearance of the said Kimani Gituanja was made to the police on 6th July 2004.
4. I have scrupulously perused through the file and I have not come across any opposition to the application.
5. I have also noted that when the matter came up for hearing on 15th March 2018, counsel on record for the parties who have been enjoined to the cause as interested parties stated from the bar, through counsel, that they were not opposed to the said application.
6. Consequently, I hereby allow the application dated 13th February 2012 in terms of prayer 1 thereof. Prayer 2 is not available as a suit founded on the provisions cited above can only be limited to the making of the presumption sought.
7. For the benefit of my successors in handling this file, I shall point out that the two causes in HC Misc. Civil Cases Nos. 23 of 2012 and 93 of 2013 are now exhausted. The suit that now pends determination is the Originating Summons dated 14th December 2010 in HC Misc. Civil Case No. 590 of 2010, which, in my very humble view, is strictly a land matter.
DATED, SIGNED and DELIVERED at NAIROBI this 27TH DAY OF JULY, 2018.
W. MUSYOKA
JUDGE