In the Matter of Esther Ongola Onyango [2014] KEHC 5502 (KLR)
- Citation
- [2014] KEHC 5502 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- DN Musyoka
- Case number
- Miscellaneous Civil Appeal 62 of 2012
- Language
- English
More details
- Court
- High Court
- Panel
- DN Musyoka
- Case number
- Miscellaneous Civil Appeal 62 of 2012
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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
ApplicantEnnos Shikanda Openda
Respondent03
Procedural history
Posture
Miscellaneous Application / Interlocutory Ruling
04
Questions and positions
Legal issues
- 01
Whether sufficient evidence has been provided to declare Ennos Shikanda Openda dead under Kenyan law.
- 02
Whether the applicant has demonstrated that reasonable steps have been taken to ascertain the whereabouts of the missing person.
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
Legal principles
- 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.
- 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 reading view
Judgment text
The complete available source text.
High Court
Judgment
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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