[2021] KEHC 13451 (KLR)
The court found that the applicants, being close relatives of the subject, had not seen or heard from Muguna M’Mwere since 1970/1972. Their evidence was corroborated by the area chief and the subject's daughter. The court was satisfied that those most likely to have contact with the subject had not heard from him...
Source-derived case information.
- Citation
- [2021] KEHC 13451 (KLR)
- Parties
- Applicant: Andrian Muthoni Paul; Applicant: Damaris Wanja
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- Application allowed. Presumption of death granted.
- Judges
- CA Otieno
- Legal Topics
- Presumption of Death, Evidence of Disappearance, Issuance of Death Certificate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrian Muthoni Paul
Applicant
Damaris Wanja
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether Muguna M’Mwere can be presumed dead under Section 118A of the Evidence Act.
- 2 Whether sufficient evidence has been adduced to justify the issuance of a death certificate.
Ratio Decidendi
The court found that the applicants, being close relatives of the subject, had not seen or heard from Muguna M’Mwere since 1970/1972. Their evidence was corroborated by the area chief and the subject's daughter. The court was satisfied that those most likely to have contact with the subject had not heard from him for a period far exceeding seven years. Applying Section 118A of the Evidence Act, the court held that the statutory presumption of death had been established. The applicants met the legal threshold for presumption of death, and it was in the interest of justice to grant the orders sought, including the issuance of a death certificate.
Court Disposition
Application allowed. Presumption of death granted.
Orders
- Muguna M’Mwere is presumed dead under Section 118A of the Evidence Act.
- A death certificate shall be issued to the applicants in respect of Muguna M’Mwere.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT MERU
CIVIL MISCELLANEOUS CASE NO. 14 OF 2019
IN THE MATTER OF AN APPLICATION FOR PRESUMPTION
OF DEATH OF MUGUNA M’MWERE
BY
ANDRIAN MUTHONI PAUL.................................................................1ST APPLICANT
DAMARIS WANJA...............................................................................2ND APPLICANT
RULING
1. Before me for determination is the Notice of Motion dated 7th February 2019 seeking that Muguna M’Mwere (hereinafter referred to as the subject)be presumed dead and a death certificate be issued to that effect. The application is anchored onSection 118Aof theEvidence Act,and all other enabling provisions of the law. It is supported by an affidavit sworn by Andrian Muthoni Paul, the 1st applicant, on even date whose gist is that being a sister to the subject she lost touch with the subject way back in the year 1970 and verily believe that he is dead.
2. On 3/3/2020, the 1st applicant was called to testify when she reiterated the facts in the affidavit in support to the effect that being sister to the subject had not seen him since 1970 yet her and co applicant needed to have a piece of land registered in the name of the subject, which he had partly shared out to siblings, administered and shared out between his children and the people he had gifted portions of the land.
3. Also called to testify was the area chief, Mr Guantai Eujenio, the chief of Kianjogu Location who told court that he last saw the subject in 1972. He further affirmed that he was not in any way related to him but confirmed that the subject left behind a wife and three children whose names he told the court.
4. Damaris Wanja, another sister to the subject testified that she last saw and/or heard about her brother in 1963. Her testimony was echoed by Caroline Karimi, a daughter to the subject. In totality the evidence was received that the people related to the deceased and expected to have contact with him had not had such contact for a period far in excess of seven years
5. I have considered the depositions made by the applicants in the affidavit on record as well as the information contained in the annexures thereto. The law governing the circumstances in which a person may be presumed dead, is set out in Section 118Aof theEvidence Act, which states 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 rebuttable presumption that he is dead.”
6. In this case, the applicants who are the subject’s sisters and whose evidence is confirmed by an older sister and a daughter to the subject are people who are expected to see and/or hear from him almost on a daily basis or every so often, have all confirmed having not heard or seen the subject since 1972 or thereabouts. I am satisfied from the testimony of the area chief, in addition to that of the blood relatives that the presumption that the subject is dead has been established.
7. In view of the foregoing, I am satisfied that the applicants have demonstrated by credible and reliable evidence that the subject disappeared in 1972, and has to date not been in touch with his close family members and that all efforts to trace his whereabouts have been futile. Flowing from the above, it is my finding that the applicants have met the threshold set in Section 118Aof theEvidence Act.
8. I find that it would be in the interest of justice to grant the applicants the orders that MUGUNA M’MWERE be presumed dead and a death certificate in that regard be issued to the applicants
DATED SIGNED DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 21ST OCTOBER, 2021.
PATRICK J.O OTIENO
JUDGE