[2005] KEHC 1274 (KLR)
The court found that the applicant had provided sufficient evidence to demonstrate that Nicholas Mburu Wanjohi had not been heard from by his family or those expected to have heard from him for over seven years since his disappearance on 10/2/1998. The applicant produced documentary evidence including a birth...
Source-derived case information.
- Citation
- [2005] KEHC 1274 (KLR)
- Parties
- Applicant: Clement Gitahi Wanjohi; Respondent: Nicholas Mburu Wanjohi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 525 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Legal Topics
- Presumption of Death, Evidence Act Section 118a, Missing Persons, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Gitahi Wanjohi
Applicant
Nicholas Mburu Wanjohi
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant has established a rebuttable presumption of death under section 118A of the Evidence Act.
- 2 Whether the disappearance of Nicholas Mburu Wanjohi for over seven years justifies the presumption of death.
Ratio Decidendi
The court found that the applicant had provided sufficient evidence to demonstrate that Nicholas Mburu Wanjohi had not been heard from by his family or those expected to have heard from him for over seven years since his disappearance on 10/2/1998. The applicant produced documentary evidence including a birth certificate, school records, police reports, and a newspaper advertisement regarding the missing person. There was no evidence or assertion to the contrary. The court held that the applicant was not required to prove actual death but only to raise a rebuttable presumption under section 118A of the Evidence Act. As the statutory requirements were met and no rebuttal was presented, the...
Court Disposition
application allowed
Orders
- The application is allowed and the orders sought are granted, declaring Nicholas Mburu Wanjohi presumed dead under section 118A of the Evidence Act.
- No costs are awarded.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Application 525 of 2005 (OS)
IN THE MATTER OF: SEC.118 A OF THE EVIDENCE ACT C.80 LAWS OF KENYA AND IN THE MATTER OF : APPLICATION BY CLEMENT GITAHI WANJOHI AND IN THE MATTER OF: NICHOLAS MBURU WANJOHI (PRESUMED DECEASED)
R U L I N G
The application before me is based on the provisions of section 118 A Evidence Act Cap 80 Laws of Kenya which states “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”.
The applicant is an adult brother of the deceased.
The applicant has exhibited the birth certificate of his brother. The applicant states that the said brother sat for certificate of Primary Education in 1990 Sec. C.G.W2 and thereafter he came to Mombasa. Inquiries have been made. Exhibit “C G W 3” shows the brother was last seen on 27/1/1998. Also exhibit CGW 4 indicates that on 18/4/1998 a report was made of his disappearance on 10/2/1998.
Also a missing person advertisement was published in Newspaper see exhibit “C G W 5”.
It is sworn that the father is dead but mother is still alive. It is sworn also that since 1998 the said brother Nicholas Mburu Wanjohi has not made any contact with his brother and mother for all this time and for the last 7 yeas he has not been heard of by the family the last time he is reported to have been heard of or seen was 10/2/1998. It is therefore correct that seven years have lapsed since disappearance.
The applicant has no burden to prove the death but to raise a rebuttable presumption. There is no one who is asserting to the contrary.
I therefore allow the application and grant the orders sought. The applicant has been acting in person. No. Costs are awarded. Orders accordingly.
Delivered and dated at Mombasa this 16th day of September 2005.
J. KHAMINWA
J U D G E
Read in presence of applicant.
KHAMINWA, J