Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

In the Matter of Esther Ongola Onyango [2014] KEHC 5502 (KLR)

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Source document

01

Holding and result

The court declined to grant the declaration of death on the evidence presented, finding that the applicant had not demonstrated that reasonable inquiries had been made, particularly in the rural area where the missing person may have ancestral ties. The judge emphasized that in the Kenyan context, individuals often have rural homes, and absence from an urban area does not conclusively establish death. The applicant was directed to obtain a letter from the Chief of the rural location to confirm whether the missing person is absent from his ancestral home, as this would constitute a reasonable step in the inquiry. Only upon satisfaction of such further evidence would the court consider making the declaration sought.

Court disposition

interim directions issued; no final declaration made

Orders

  • The applicant is directed to obtain a letter from the Chief of the Location in the rural area that Mr. Openda hailed from.
  • The matter to be placed before the court for further orders or directions after compliance.

02

Material facts

Parties

Esther Ongola Onyango

Applicant

Ennos Shikanda Openda

Respondent

03

Procedural history

  1. Posture

    Miscellaneous Application / Interlocutory Ruling

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant avers she was the customary law wife of Ennos Shikanda Openda, who has been missing since 2001. She provides an affidavit, proof of marriage, and a police abstract indicating a missing person report was filed in 2011. She seeks a declaration of death to facilitate legal closure.
Respondent
No respondent appeared or filed any argument in opposition to the application.

05

Court’s reasoning

  1. 01

    Section 118A, Evidence Act (Cap 80) and common law presumptions regarding missing persons.

    A declaration of death requires cogent evidence that the person has not been seen or heard from for a prolonged period and that reasonable inquiries have been made to ascertain their whereabouts.

  2. 02

    Kenyan case law on customary marriages and the Law of Succession Act.

    Customary law marriage must be established by evidence of customary rites and recognition by the community.

06

Ratio, limits and disposition

Ratio decidendi

The court declined to grant the declaration of death on the evidence presented, finding that the applicant had not demonstrated that reasonable inquiries had been made, particularly in the rural area where the missing person may have ancestral ties. The judge emphasized that in the Kenyan context, individuals often have rural homes, and absence from an urban area does not conclusively establish death. The applicant was directed to obtain a letter from the Chief of the rural location to confirm whether the missing person is absent from his ancestral home, as this would constitute a reasonable step in the inquiry. Only upon satisfaction of such further evidence would the court consider making the declaration sought.

Obiter and limits

  • Virtually all residents of Nairobi have a rural connection, and absence from the city does not necessarily mean the person is dead.
  • No indication has been given that Mr. Openda is not at his rural home.

Court disposition

interim directions issued; no final declaration made

  • The applicant is directed to obtain a letter from the Chief of the Location in the rural area that Mr. Openda hailed from.
  • The matter to be placed before the court for further orders or directions after compliance.

Source and reliance status

High Court

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Judgment text

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Source document

High Court

Judgment

[2014] KEHC 5502 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MISC. APPEAL NO. 62 OF 2012

IN THE MATTER OF AN APPLICATION BY ESTHER ONGOLA ONYANGO

RULING

1. The Chamber Summons dated 15th May 2012 seeks a declaration that Ennos Shikanda Openda is dead. He is said to be missing since 2001.

2. To support the application, the applicant, Esther Ongola Onyango, has filed an affidavit sworn on 15th May 2012. She avers that she was the customary law wife of the said Mr. Openda, and has attached documents as proof of the marriage. There is also an abstract from the police records of the Soweto Police Station, Nairobi, which indicate a report was made to the police on 28th September 2011 to the effect that Mr. Openda has been missing since 2001.

3. I am not satisfied that I can make the order sought on the basis of the material before me. Virtually all residents of Nairobi have a rural connection. Mr. Openda must have traced his ancestry to some place in Luhya land. No indication has been given to me that he is not at his rural home.

4. Before I make final orders on the matter I direct the applicant to obtain a letter from the Chief of the Location in the rural area that Mr. Openda hailed from.

5. This matter should thereafter be placed before me for further orders/directions.

DATED, SIGNED and DELIVERED at NAIROBI this 25th DAY OF April, 2014.

W MUSYOKA

JUDGE

No appearance for the applicants.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Evidence Act (Cap 80)

Legislation

Legislation referenced in the available case record.

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