[2018] KEHC 6138 (KLR)
The court found that the applicant, having already obtained an order of presumption of death in respect of Nyaga Kamwana, was entitled to seek a further order compelling the respondent to issue a death certificate. The omission to include this prayer in the earlier application did not preclude the applicant from...
Source-derived case information.
- Citation
- [2018] KEHC 6138 (KLR)
- Parties
- Applicant: Jacinta Wangiri Nyaga; Respondent: Embu County Registrar of Persons
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 72 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Issuance of Death Certificate Following Presumption of Death
- Outcome
- application allowed
- Judges
- FN Muchemi
- Legal Topics
- Presumption of Death, Issuance of Death Certificate, Births and Deaths Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wangiri Nyaga
Applicant
Embu County Registrar of Persons
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Issuance of Death Certificate Following Presumption of Death
Legal Issues
- 1 Whether the applicant is entitled to an order directing the respondent to issue a death certificate for Nyaga Kamwana following a presumption of death order.
- 2 Whether the omission to seek the death certificate in the earlier application precludes the applicant from obtaining the order now.
Ratio Decidendi
The court found that the applicant, having already obtained an order of presumption of death in respect of Nyaga Kamwana, was entitled to seek a further order compelling the respondent to issue a death certificate. The omission to include this prayer in the earlier application did not preclude the applicant from seeking it now, as the issuance of the death certificate is a logical consequence of the presumption of death order. The court held that the application was merited and allowed it, directing the respondent to issue the death certificate as sought.
Court Disposition
application allowed
Orders
- The Embu County Registrar of Persons is hereby ordered to issue a death certificate in respect of Nyaga Kamwana.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CIVIL APPLICATION NO. 72 OF 2016
IN THE MATTER OF PRESEMPTION OF DEATH
IN THE MATTER OF NYAGA KAMWANA - (DECEASED)
JACINTA WANGIRI NYAGA......................................APPLICANT
VERSUS
EMBU COUNTY REGISTRAR OF PERSONS....RESPONDENT
R U L I N G
1. This is a ruling on an application dated 18/03/2018 seeking for orders that the Embu County Registrar of Persons be hereby ordered to issue a death certificate in respect of one Nyaga Kamwana.
2. The Registrar of Persons is named as the respondent herein. He was informally served with the application by leaving a copy in his office.
3. The grounds supporting this application are that the applicant is the biological daughter of the said Nyaga Kamwana who disappeared from home without trace in 1991. The applicant in an application dated 11/05/2016 brought under Section 118A of the Births and Deaths Registration Act Cap. 149 obtained an order of presumption of death in the ruling of Bwonwonga, J. delivered on 6/07/2016.
4. Section 118A provides:-
“...where it is proved that a person has not been seen or heard of for several years....”
5. The applicant seems to have overlooked including the prayer in this application in her earlier application dated 21/07/2016. Had the prayer been included, the judge who found that application merited would have in the same breath granted the prayer to be issued with the death certificate by the respondent.
6. In view of the outcome of the first application and on the grounds supporting this application, I find this application merited.
7. It is hereby allowed with no order as to costs.
8. It is hereby so ordered.
DATED, DELIVERED AND SIGNED THIS 18TH DAY OF JUNE, 2018.
F. MUCHEMI
JUDGE
In the presence of:-
The Applicant
5 Relatives named in the record