[2021] KEHC 8954 (KLR)
The court found that the applicants, being the children of Francis Lukas Maragia, had not seen or heard from him since 1st February 1989. The disappearance was promptly reported to the police and the local chief, and all reasonable efforts to trace him, including searches and public notices, were unsuccessful. The...
Source-derived case information.
- Citation
- [2021] KEHC 8954 (KLR)
- Parties
- Applicant: Anthony Kinara Maragia; Applicant: Florence Bochere Maragia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 139 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons
- Outcome
- Application allowed. Prayers (1) and (2) granted. No order as to costs.
- Judges
- JV Juma
- Legal Topics
- Presumption of Death, Missing Persons, Evidence Act Section 118a
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Kinara Maragia
Applicant
Florence Bochere Maragia
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons
Legal Issues
- 1 Whether Francis Lukas Maragia can be presumed dead under Section 118A of the Evidence Act.
- 2 Whether the applicants have provided sufficient evidence to support the presumption of death.
Ratio Decidendi
The court found that the applicants, being the children of Francis Lukas Maragia, had not seen or heard from him since 1st February 1989. The disappearance was promptly reported to the police and the local chief, and all reasonable efforts to trace him, including searches and public notices, were unsuccessful. The court determined that the applicants were persons who would reasonably be expected to have heard from the subject if he were alive. Given the lapse of 32 years without any communication or trace, the court held that there was reliable and credible evidence to support the presumption of death under Section 118A of the Evidence Act. The court therefore granted the orders sought...
Court Disposition
Application allowed. Prayers (1) and (2) granted. No order as to costs.
Orders
- Francis Lukas Maragia is presumed dead.
- The Registrar of Death to issue a Certificate of Death in respect of Francis Lukas Maragia.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
FAMILY DIVISION
MISCELLANEOUS APPLICATION NO. 139 OF 2019
IN THE MATTER OF PRESUMPTION OF DEATH OF FRANCIS LUKAS MARAGIA
ANTHONY KINARA MARAGIA.......................................................1ST APPLICANT
FLORENCE BOCHERE MARAGAI..................................................2ND APPLICANT
RULING
1. Before this Court is the Originating Summons dated 23rd July 2019 by which ANTHONY KINARA MARAGIA (the “1st Applicant”) and FLORENCE BOCHERE MARAGIA (the “2nd Applicant”) sought the following orders:-
“1. THAT FRANCIS LUKAS MARAGIA be and is hereby presumed dead.
2. THAT the Registrar of Death do issue a Certificate of Death in respect of FRANCIS LUKAS MARAGIA.
3. THAT cost of the application be in the cause.”
2. The application is premised on Section 118A of the Evidence Act and is based on the grounds on the face of the Summons and supported by the affidavit of even date sworn by the Applicants.
3. The 1st Applicant Anthony Kinara Maragia told the Court that the Subject Francis Lukas Maragia who is his biological father left the family home in Kileleshwa on 1st February, 1989 and was never seen again. Todate the subject has not been seen or heard from again.
4. PW2 Josephine Maragia Nyamusi a daughter to the Subject confirms that her father left the family home in the year 1989 and todate has never returned. PW2told the Court that they remained under the care of their mother who later passed away in the year 2008.
5. Section 118A of the Evidence Act, Cap 80, Laws of Kenya, provides that:-
“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. The Applicants have told the Court that the subject left the family home in Kileleshwa on 1st February 1989 and never returned. The Subject was reported missing at Kileleshwa Police Station vide OB Number 30 of 3rd February 1989. The letter dated 23rd February 1989 written by the OCS Kileleshwa Police Station (Annexture AMA ‘1’) confirms that a report was made to the Police. Similarly the family reported the disappearance of the Subject to the Chief in their rural home at Nyansiongo Location. A letter from the Chief (Annexture ‘AM2’) dated 11th May 2018 confirms this.
7. Despite efforts made to find the Subject he was never traced. It is averred that the family made searches in hospitals and mortuaries and even caused an Advert to be placed in the local dailies seeking information from the public on the whereabouts of the Subject. A copy of said Advert is annexed to the Summons (Annexture AM’2’).
8. The Applicants are the children of the Subject. The Subject’s wife (mother to the Applicants) passed away much later on 28th March 2008. A copy of her Death Certificate Serial Number 0837012 (Annexture ‘MHN 1’) is proof of her demise.
9. The Applicants are the persons who would reasonably be expected to hear from the Subject on a daily basis. They have not seen or heard from him since 1989. Efforts made to trace the whereabouts of the Subject have borne no fruit. I find that there exists reliable and credible evidence that the Subject has been missing for the past 32 years. In the circumstances it is reasonable to presume that the Subject is no longer alive.
10. In the circumstances, I find the present application to have merit. Accordingly I grant prayers (1) and (2) of the Originating Summons dated 23rd July 2019. As this is an Ex-parte application I will make no orders on costs.
Dated in Nairobi this 12th day of February, 2021.
........................................
MAUREEN A. ODERO
JUDGE