[2022] KEHC 2966 (KLR)

In the Matter of an Application for Presumption of Death of Joseph Mwangangi Mutisya (Miscellaneous Application E005 of 2022) [2022] KEHC 2966 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2966 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E005 of 2022

MW Muigai, J

May 18, 2022

IN THE MATTER OF AN APPLICATION FOR PRESUMPTION OF DEATH OF JOSEPH MWANGANGI MUTISYA ELIZABETH SYOMBUA JOSEPH - APPLICANT

Ruling

Originating Summons 1. The Applicant, Elizabeth Syombua Joseph filed the application under Section 118 A of the Evidence Act, Section 3A of the Civil Procedure Act Order 50 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law and sought the following orders:-(i)That Joseph Mwangangi Mutisya be hereby presumed dead.(ii)That the Registrar of birth and Death issues a Certificate of Death in respect of the said Joseph Mwangangi Mutisya.(iii)That Joseph Mwangangi Mutisya has not been seen or heard of from the 17th of April, 2002. (iv)That it is now more than 7 years since the disappearance of Joseph Mwangangi Mutisya(v)That the disappearance was reported to Donyo Sabuk Police Station, District Commissioner’s Office at Yatta District, Chief of Kivaa Location, Kaewa Police Post in Masinga.vi.That at the time of disappearance he was married to the Applicant with whom they had 10 children.vii.That it is in the interest of justice that the orders sought are granted as per the Applicant’s welfare stands to be compromised.

2. The application is supported by the Affidavit sworn by Elizabeth Syombua Joseph sworn on 25th January, 2022 inter alia that she was married to Joseph Mwangangi Mutisya sometimes in the year 1967. She deposed that on or about 16th April, 2002, Joseph Mwangangi Mutisya left his home at Kivaa Location within Kindaruma to go and visit his son one Shedrack Muema Mwangangi who resides in Donyo Sabuk Market, they met but he has never returned back to date.

3. The Applicant deposed that Shedrack Muema Mwangangi informed her that on 16th April ,2002, he gave his father his house to sleep in and he went to sleep at a friend’s house as his house was a single room. On the morning of 17th April 2002, the son found the door open and the father Joseph Mwangangi Mutisya’s clothes strewn all over the floor together with his wallet containing his identity card. His son reported the disappearance to the police at Donyo Sabuk Police Station and they started the search and were unsuccessful.

4. The Applicant deposed that they reported at the Area chief’s Office at Kivaa Location, District Commissioner’s Office in Yatta and Kaewa Police Post Masinga under OB.No. 06/24/11/2021. In addition, neither she nor her children have heard nor seen the husband and he has never contacted them.

5. There is also a supporting affidavit of Shedrack Muema Mwangangi deposed on 25th January 2022 in which he states that he met his father on 16th of April 2002 at Donyo Sabuk Market, they got home, had supper and he settled him to sleep and he went to his friend’s house to sleep as his house was a single room.

6. He deposed that on 17th April 2002 he went to the house and found the door ajar with his father’s clothes strewn all over the floor together with his wallet. He stated that he checked the wallet and only found an identity card minus money. He said he immediately reported the matter at Donyo Sambuk Police Station but the search was unsuccessful.

7. On 24th November 2021 together with his mother, they reported the matter to Kaewa Police Post. He contended that neither him, his mother nor his siblings have heard from his father nor seen him.

Determination: 8. The Court considered the Originating Summons, the Affidavit in support and the documents annexed in support and I find that the only issue for determination is whether the Applicant is entitled to the orders sought.

9. Section 118A of the Evidence Act, Cap 80 Laws of Kenya provides that: -“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.”

10. The Applicant attached letters from the Chief in Kivaa Location in respect of the lost person dated 22/08/2003, 15/12/2008 and 15/01/2021 respectively. The letter dated 22nd August 2003 intimates that Joseph Mwangangi Mutisya has not been seen or heard of since 17th April 2002 when he got lost and expresses the intention of the widow to access the money they had in the account in the circumstances.

11. The letter dated 15th December 2008 indicates that the family has tried to trace Joseph Mwangangi Mutisya in vain and the widow intends to access the accounts for family upkeep.

12. The letter dated 15th January 2021 indicates that the search has proven futile, list the beneficiaries is as listed ;Elizabeth Syombua Joseph as the wife and the children as Julius Ndolo Mutisya, Anthony Kimeu Mutisya, Gladys Mueni Munguti, Shadrack Mwema Mwangangi, Peter Nzuki Mutisya, Grace Munyiva Mwangangi, Moureen Monthe Mwangangi, Damaris Mbinya Mwangangi and Marion Mwende Mwangangi. The letter seeks that they be accorded the necessary assistance.

13. The Applicant has also annexed a letter from the District Commissioner- Yatta District dated 28th January, 2010 that indicates that Joseph Mwangangi Mutisya is a lost person making allegation of death a rebuttable presumption.

14. The letter dated 24th November, 2021 from Kaewa Police Post, Masinga is titled “Missing Person Report.” The letter indicates that;“Name: Joseph Mwangangi MutisyaDate Lost: 17 APRIL 2002……………………The report of the missing person had not been reported until todayOB No. 06/24/11/2021 TIME 11. 00HrsKindly assist the wife namely Elizabeth Syombua Josephto be the next of kin.Thanks.Stamped, Kaewa Police Post”

15. The Applicant’s son, Shadrack Mwema Mwangangi who was last seen with Joseph Mwangangi Mutisya has described the scene he found on the morning of 17th of April 2002 and that he reported the same to Donyo Sambuk Police Station but no evidence was tendered to confirm the Subject’s disappearance; the OB Number and the steps taken by the police station and/ or its officers in trying to find the missing person. The letters from the Chief only spell out the circumstances of the case and not the exact steps that have been taken in trying to find the missing person.

16. This Court notes with concern that the Chief’s Letter of 5/1/2021 shows the said Shedrack Muema Mwangangi was/is aged 34 years old as at 2021. So if the disappearance of the subject Joseph Mwangangi Mutisya was lost when he visited him in 2002 then he was only 14 years old. The set of facts pleaded does not tie up.

17. Section 386 of the Criminal Procedure Code Cap 75 Laws of Kenya provides that:“The officer in charge of a police station, or any other officer specially empowered by the Minister in that behalf, on receiving information that a person –(a)has committed suicide; or(b)has been killed by another or by an accident; or(c)has died under circumstances raising a reasonable suspicion that some other person has committed an offence; or(d)is missing and believed to be dead; shall immediately give information thereof to the nearest magistrate empowered to hold inquests, and, unless otherwise directed by any rule made by the Minister, shall proceed to the place where the body of the deceased person is, and shall there make an investigation and draw up a report on the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), the marks appear to have been inflicted; and the report shall in the case of paragraph (a), (b) or (c); be forwarded forthwith to the nearest magistrate empowered to hold inquests; and in the case of paragraph (d) shall immediately send to the Director of Public Prosecutions through the Commissioner of Police as full a report as possible together with details of all supporting evidence relating to the circumstances surrounding the disappearance and the grounds upon which the death of that person is presumed to have taken place.(2)When, except in the case of a missing person believed to be dead there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient to do so, he shall, subject to any rule made by the Minister, forward the body, with a view to its being examined, to the nearest medical officer or other person appointed by the Minister in that behalf, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render the examination useless.(3)When the body of a person is found or a person has committed suicide or has been killed by another or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, a person finding the body or becoming aware of the death shall immediately give information thereof to the nearest administrative officer or police officer.”

18. Section 387 (6) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya provides that;“In the case of an inquiry relating to a missing person believed to be dead the Magistrate shall at the termination of the inquiry report the case together with his findings to the Director of Public Prosecutions and shall make recommendations as to whether or not the period regarding the presumption of death provided for by section 118A of the Evidence Act (Cap. 80) should be reduced and if so what lesser period should, in the circumstances of the death, be substituted for the period of seven years.”

19. Section 388(1) of Criminal Procedure Code provides:-The Director of Public Prosecutions may at any time direct a Magistrate to hold an inquiry, in accordance with Section 387, into the cause of a particular death to which the provisions of that section apply and shall in the case of missing person believed to be dead give such directions as he deems fit.

20. Shadrack Mwema Mwangangi and Elizabeth Syombua Joseph indicate in their sworn affidavits indicate that the son reported the matter to Donyo Sambuk Police Station contrary to what is contained in the letter dated 24th November, 2021 from Kaewa Police Post indicates that this was the first report since 2002 . Nineteen (19) years later. There is no indication of an OB number in 2002 and one must be issued with an OBnumber when a report is made to the police station.

21. There is no report on record nor any indication that this matter has been placed before the nearest Magistrate to hold an inquiry. An inquest ought to be preferred as per the provisos above by a Magistrate and at the termination of the inquiry, the Magistrate makes the finding to the Director of Public Prosecution.

22. The Court of Appeal in the case of Speaker of the National Assembly v James Njenga Karume[1992] eKLR stated that;“where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

23. In Re matter of Pius Mukono Murage (PresumedDCD) [2019] eKLR, the Court found that a letter from the Chief indicating the whereabouts of the missing person as unknown meant that the presumption of death was a rebuttable presumption. Hon. Lady Justice Gitari observed that;“The letter from the Chief which is annexed states that the whereabouts of the missing person are unknown. The presumption of death is rebuttable. As such the party seeking an order that the missing person be presumed dead must adduce sufficient evidence. The applicant has only shown that a report was made to the police and she advertised once in the local dailies. The applicant has not adduced sufficient evidence. She did not adduce evidence from other relatives to confirm that the said missing person has not been seen or heard.……………It was upon the police to investigate and if it comes to the conclusion that the person is missing, open an inquiry file and place it before a Magistrate to conduct an inquest.”

24. The Court has considered the facts outlined against the law outlined above and finds that the Applicant in this case had not provided conclusive evidence to support the Court granting orders on presumption of death of the subject. Hon. G.V. Odunga J stated in Re Gregory Musau Muasya (Presumed Deceased) [2021] eKLR, that presumption of death is serious and Court must look beyond the lapse of time as follows;“A declaration that a person is presumed dead is a serious presumption that ought only to be made when the court is satisfied that based on the circumstances of the case, there is sufficient material that the person must be dead. It is not merely the lapse of time that the court considers but also the steps made by the applicant to trace the whereabouts of the subject. Such steps as inquiries made amongst the close relatives, reporting of missing person to the police, (possibly) newspaper advert are all steps which may go towards showing that the subject, in all probability, must be dead.”

Disposition1. The Petition filed for the Court to grant certificate of death of Joseph Mwangangi Mutisya ( Subject Lost Person) fails as there is not sufficient evidence to confirm the rebuttable presumption of death of the Subject lost person.2. Section 118 of Evidence Act & Section 386 of Criminal Procedure Code to be complied with.3. This is a case that needs to be investigated before such a serious conclusion is made. Let the Applicants follow the legal procedure prescribed.4. It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 18TH MAY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE