[2014] KEHC 5027 (KLR)
The court found that Stephen Kimani Wainaina had not been heard of for over nine years by his immediate family and community, despite reasonable efforts to locate him, including police reports and public announcements. Applying Section 118A of the Evidence Act, which allows for the presumption of death after seven...
Source-derived case information.
- Citation
- [2014] KEHC 5027 (KLR)
- Parties
- Applicant: Millicent Nyawira Mwangi; Respondent: Stephen Kimani Wainaina
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 102 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- J Ngaah
- Legal Topics
- Presumption of Death, Evidence of Disappearance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Millicent Nyawira Mwangi
Applicant
Stephen Kimani Wainaina
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should issue a certificate of presumption of death for Stephen Kimani Wainaina under Section 118A of the Evidence Act.
Ratio Decidendi
The court found that Stephen Kimani Wainaina had not been heard of for over nine years by his immediate family and community, despite reasonable efforts to locate him, including police reports and public announcements. Applying Section 118A of the Evidence Act, which allows for the presumption of death after seven years of unexplained absence, the court concluded that the statutory threshold had been met. In the absence of any contrary evidence, the court granted the application and ordered the issuance of a certificate of presumption of death.
Court Disposition
application allowed
Orders
- A certificate of presumption of death of Stephen Kimani Wainaina to issue.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
MISCELANEOUS APPLICATION NO. 102 OF 2013
IN THE MATTER OF SECTION 118A OF THE EVIDENCE ACT
CHAPTER 80 LAWS OF KENYA
AND IN THE MATTER OF APPLICATION BY MILLICENT NYAWIRA MWANGI
AND
IN THE MATTER OF STEPHEN KIMANI WAINAINA
RULING
The applicant made an application by way of an Originating Summons seeking for a certification for presumption of death of one Stephen Kimani Wainaina. The application was brought under Section 118A of the Evidence Act and Order 37 of the Civil Procedure Rules, 2010.
The application was supported by the affidavit of Millicent Nyawira Mwangi sworn on 29th July, 2013 and a supplementary affidavit sworn on 11th February, 2014 by Miriam Njeri Muhoro. Millicent Nyawira Mwangi is the wife of Stephen Kimani Wainaina while Miriam Njeri Muhoro is his mother.
It is apparent from the affidavits filed in support of the application that sometimes in the year 2004, Stephen Kimani Wainaina who hailed from Muriranjas in Murang’a County disappeared while working at Kiambu. By then he used to live with his wife and children at Muriranjas hospital where his wife still works to date. A report of his disappearance was made to the police in February 2004 and was entered in the occurrence book as number 28/24/10/2004 at Kiambu police station. Apart from reporting to police, an announcement was also made in a local radio station asking whoever may have seen Stephen Kimani Wainaina to inform him to come back home.
Despite all the efforts to trace him, Stephen Kimani Wainaina has never been found nine years after he disappeared. The applicant and her mother in law now want this court to issue a certificate of the presumption death of the said Stephen Kimani Wainaina.
I have considered the applicant’s application and the supporting affidavits thereof. I have also considered submissions by counsel for the applicant. Section 118A of the Evidence Act presupposes death of a person if that person has not been heard of for seven years by those who might be expected to have heard of him. In this case Stephen Kimani Wainaina has not been heard of for the last nine years and therefore it is legitimate to assume that he may be deceased. In the absence of any contrary evidence, I allow the applicant’s application dated 29th July, 2013 and order that a certificate of the presumption of death of Stephen Kimani Wainaina do issue.
Signed dated and delivered in open court this 3rd March, 2014
Ngaah Jairus
JUDGE