[2019] KEHC 8147 (KLR)
The court found that Peter Njoroge Matenjwa had not been seen or heard of for over 14 years, satisfying the statutory presumption of death under section 118A of the Evidence Act. The evidence included police and local administration reports confirming the disappearance. As the subject was unmarried and childless,...
Source-derived case information.
- Citation
- [2019] KEHC 8147 (KLR)
- Parties
- Applicant: Leah Wambuku Matenjwa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 20 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death and Vesting of Property
- Outcome
- Application allowed. Orders granted as prayed in prayers (a), (b), and (c). Costs in the cause.
- Judges
- AG Ndung'u
- Legal Topics
- Presumption of Death, Vesting of Property, Succession of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Wambuku Matenjwa
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death and Vesting of Property
Legal Issues
- 1 Whether the court should declare Peter Njoroge Matenjwa presumed dead under section 118A of the Evidence Act.
- 2 Whether the applicant, as the sole surviving beneficiary, should be allowed to deal with and have vested in her the properties of the missing person.
Ratio Decidendi
The court found that Peter Njoroge Matenjwa had not been seen or heard of for over 14 years, satisfying the statutory presumption of death under section 118A of the Evidence Act. The evidence included police and local administration reports confirming the disappearance. As the subject was unmarried and childless, the applicant, his mother, is the only surviving beneficiary. The court therefore granted the orders sought: presumption of death, vesting of the subject's properties in the applicant, and registration of the land in her name.
Court Disposition
Application allowed. Orders granted as prayed in prayers (a), (b), and (c). Costs in the cause.
Orders
- Peter Njoroge Matenjwa is presumed dead under section 118A of the Evidence Act.
- Land title LR No. KIJABE/KIJABE BLOCK 1/5548 to be registered in the name of Leah Wambuku Matenjwa.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISCELLANEOUS CIVIL APPLICATION NUMBER 20 OF 2018
IN THE MATTER OF AN APPLICATION FOR DECLARATION OF PRESUMPTION OF DEATH
AND
IN THE MATTER OF THE EVIDENCE ACT CAP 80 SECTION 118A
LEAH WAMBUKU MATENJWA..............................................APPLICANT
RULING
1. The notice of motion before court is dated 9/11/2018. The orders sought are;
a. THAT this Honourable Court be pleased to order and or presume Peter Njoroge Matenjwa as dead by virtue of not having been seen or heard for continuously 14 years to whose who ordinarily would have heard of him and he been alive.
b. THAT this Honourable Court be pleased to order that the parcel of land title number LR No. KIJABE/KIJABE BLOCK 1/5548 which belongs to Peter Njoroge Matenjwa be registered in the names of LEAH WAMBUKU MATENJWA to enable her deal with the same; and
c. THAT Peter Njoroge Matenjwa’s properties in Maai Mahiu be vested to LEAH WAMBUKU MATENJWA, the remaining beneficiary.
d. THAT the costs of this application be in the cause.
2. The application is premised on grounds;
1. THAT Peter Njoroge Matenjwa has not been seen or heard of continuously for fourteen (14) years and his whereabouts are unknown.
2. THAT the Local Administration was informed and a search was embarked on but in vain.
3. THAT he was a son of LEAH Wambuku Matenjwa and the late James Matenjwa Njoroge.
4. THAT he was not married or had children at the time of disappearance.
5. THAT the disappearance had been reported at Maai Mahiu Police Station under OB No. 12/15/11/2008.
6. THAT the lost son had some properties in Maai Mahiu and which properties are going to waste as there is no one to take care of them.
7. THAT the lost son was the owner of land registration number title L.R. No. KIJABE/KIJABE BLOCK 1/5548.
8. THAT it is only prudent that this Honourable Court be pleased to order and or presume Peter Njoroge Matenjwa as dead and to allow the mother/applicant deal with his properties.
3. It is supported by the affidavit of Leah Wambui Matenjwa, the mother to the subject, Peter Njoroge Matenjwa.
4. In a nutshell, the applicants’ case is that the subject disappeared and has not been seen or heard of continuously for 14 years and his whereabouts are unknown.
5. Evidence of a report to police and confirmation by the local administration (chief and assistant chief) are tendered in evidence.
6. It is urged that at the time of such disappearance, the subject was not married and had no children.
7. I have applied my mind to the application and the affidavit evidence. I am satisfied that the subject disappeared over 14 years ago and has not been seen or heard of since by those who would ordinarily be in contact with him. He was not married and had no children so Leah Wambuku Matenjwa the mother is the only surviving beneficiary, there being evidence that the father, James Matenjwa Njoroge, is deceased.
8. Accordingly, I find merit in the notice of motion dated 9/11/2018 and allow the same in terms of prayers (a), (b) and (c). The costs shall be in the cause.
Orders accordingly.
Dated and Signed at Nakuru this 3rd day of April, 2019.
A. K. NDUNG'U
JUDGE