[2010] KEHC 1863 (KLR)
The court found that M’Irianki Murungi had been missing for 33 years, far exceeding the statutory period of seven years required for a presumption of death under Section 118A of the Evidence Act. The applicant provided credible evidence, including affidavits from family members and third parties, as well as a letter...
Source-derived case information.
- Citation
- [2010] KEHC 1863 (KLR)
- Parties
- Applicant: Maricella Gakii; Respondent: M’Irianki Murungi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 70 of 2010
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application granted
- 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
Maricella Gakii
Applicant
M’Irianki Murungi
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the court should presume M’Irianki Murungi as dead under Section 118A of the Evidence Act due to his disappearance for over 7 years.
Ratio Decidendi
The court found that M’Irianki Murungi had been missing for 33 years, far exceeding the statutory period of seven years required for a presumption of death under Section 118A of the Evidence Act. The applicant provided credible evidence, including affidavits from family members and third parties, as well as a letter from the local chief, confirming that Murungi had not been seen or heard from since his disappearance. The court was satisfied that all reasonable inquiries had been made and that the requirements of the law were met. Therefore, the court presumed M’Irianki Murungi as dead to enable the applicant to pursue matters relating to his estate, particularly the disputed land.
Court Disposition
application granted
Orders
- The court presumes M’Irianki Murungi as dead by virtue of having disappeared for more than 7 years.
- There shall be no orders as to costs in this action.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Miscellaneous Application 70 of 2010
IN THE MATTER OF IRIANKI MURUNGI AND THE MATTER OF EVIDENCE
ACT CAP 80 SECTION 118A
MARICELLA GAKII ......................................... APPLICANT
JUDGMENT
Before court is an ex parte application made by Maricella Gakii seeking the court to presume that M’Irianki Murungi as dead.The applicant is the sister to Murungi.She has two other brothers who have given their consent to the present application.Their mother who is also alive has given her consent.The application is made on the basis that Murungi disappeared from their home Nkumari Village Mitunguu Location in 1977. By then, when he disappeared, he was not married and todate, they have not received any instructions to the contrary.She deponed in her affidavit that had Murungi been alive, she as his sister or his mother who is alive would have heard from him or seen him.In total, Murungi has been away from home for 33 years.Before he disappeared, he was the registered owner of parcel number Nkuene/Nkumari/1150. The applicant stated that she has since discovered that the said parcel of land had been transferred to another person in 1991 in circumstances that are not clear.It is because of that that she applies the court to presume Murungi has being dead so that she can pursue the issue of that land.The application was also supported by two other persons who swore affidavits confirming the depositions of Gakii.Those affidavits were sworn by Junius Mbijiwe and M’Mwobobia M’Muketha.The chief of Ndamene Location also gave a letter confirming those depositions.The application is brought under Section 118A of the Evidence Act.The application has merit and I therefore grant the following orders:-
1. The court does hereby presume M’Irianki Murungi as dead by virtue of having disappeared for more than 7 years.
2. There shall be no orders as to costs in this action.
Dated and delivered at Meru this 2nd day of July 2010.
MARY KASANGO
JUDGE