In re Presumption of Death of Shivulu (Family Originating Summons E002 of 2026) [2026] KEHC 7251 (KLR) (28 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **HIGH COURT FAMILY ORIGINATING SUMMONS NO. E002 OF 2026** **IN THE MATTER OF SECTIONS 118A AND 119 OF THE EVIDENCE ACT (CAP 80, LAWS OF KENYA)** **AND** **IN THE MATTER OF SECTION 17 OF THE BIRTHS AND DEATHS REGISTRATION ACT** **AND** **IN THE MATTER OF THE PRESUMPTION OF DEATH OF MUSA SHIVULU** **BETWEEN** **MARGARET MWICHINA MBAKA …………………………………… APPLICANT** **Coram: Before Justice R. Nyakundi** **RULING** 1. The applicant approached this court vide an application dated 15th May 2026 seeking the following orders; 2. *This honourable court be pleased to declare that MUSA SHIVULU, born in or about 1929 and last seen on or about 17th November, 1971 at Bungoma, is presumed dead.* 3. *The Registrar of Births and Deaths, Vihiga County, be directed to register the death of the said MUSA SHIVULU and issue a Death Certificate accordingly.* 4. *This Honourable court be pleased to issue such further or consequential orders as may be necessary for the preservation, protection, and administration of the estate of the presumed deceased, particularly Title No. KAKAMEGA/SEREM/856, so as to prevent waste, mismanagement, or unlawful interference.* 5. *That there be no orders as to costs.* 6. The application is premised on the grounds set out in the supporting affidavit sworn by the applicant. 7. The application is anchored on various grounds, and the Applicant avers that the statutory threshold for a presumption of death under Section 118A of the Evidence Act has been fully satisfied, the provision raising such a presumption where a person has not been heard of for seven (7) years by those who would naturally have heard from him. In the present case, the Missing Person has been absent and unheard of for a continuous period exceeding fifty (50) years, having last been seen on or about 17th November 1971 at Bungoma under circumstances that were not followed by any communication, return, or trace. The disappearance was total, unexplained, and inconsistent with continued life, there being no evidence of voluntary relocation, no intention to abandon family or residence, and no subsequent contact with relatives or community. Notwithstanding long-standing and structured search efforts undertaken by the Applicant and the family over several decades, including inquiries among relatives and associates across Bungoma, Kakamega, and the surrounding regions, consultations with clan elders and community leadership in Mungavo Village, engagement with the local administration including the Chief of Shamakhokho Location, and reporting to Serem Police Station, no credible information, trace, or sighting has ever been established. 8. The Applicant further avers that the evidentiary record is completely silent, no communication, witness, administrative record, or assertion of life having emerged over the intervening five decades, such that the prolonged and unexplained absence operates as strong corroborative evidence under both statutory and common law principles and strengthens the presumption into near certainty in law. The Applicant avers that the Missing Person is associated with Title No. KAKAMEGA/SEREM/856, which remains unadministered, and that without the declaration sought the estate remains legally frozen and the property exposed to waste, encroachment, or mismanagement, while lawful succession and administration cannot proceed, thereby rendering judicial intervention necessary to secure legal certainty and protect property rights. The Applicant finally avers that the orders sought are grounded in long-standing and uncontested absence, occasion no prejudice to any known living person, serve the public interest in resolving legal uncertainty, and are in the interests of justice. 9. The only issue for determination that arises is; 10. Whether there should be a presumption of death made in respect of Musa Shivulu **Whether there should be a presumption of death made in respect of Musa Shivuku** 1. I have considered the application, the supporting affidavit and all the annexures thereto. The law governing the circumstances in which a person may be presumed dead is set out in Section 118A of the Evidence Act which states as follows: *“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.”* 1. In the case of In **Re E N K [2017] eKLR**, Njuguna, J held that:- “*The presumption of death is a rebuttable presumption which can be reversed if sufficient evidence is adduced to the contrary. Therefore, before this presumption is made, sufficient evidence has to be adduced in court to prove presumption of death.”* 1. In our jurisdiction, there is an elaborate procedure for an applicant to bring his/her case on presumption of death within the ambit of Section 118A of the Evidence Act. The applicable statute is Section 386 of the Criminal Procedure Code CAP 75 of the Laws of Kenya which provides: **Section 386 of the Criminal Procedure Code Cap 75 Laws of Kenya**provides: “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.” 1. The elaborate textual procedure is as stated in **Section 387(6)** of the Criminal Procedure Code as read with Section 388 of the same code. “6) 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 should be reduced and if so what lesser period should, in the circumstances of the death, be substituted for the period of seven years.” Section 388(1) of Criminal Procedure Code provides: - (1) 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. 1. Further on the legislative framework, **Rule II** of the **Probate and Administration Rules** made under the Law of Succession Act serves as the procedural law and provides as follows: 1. *“An application for an order presuming the death of a person of whose death there is no sufficient written evidence and whose estate a grant is sought shall be made by summons to the court and shall be supported by an affidavit setting out the grounds of the Application.”* 2. It is therefore evident that Section 118A of the Evidence Act has to be construed and interpreted in line with Section 386, 387 and 388 of the Criminal Procedure Code. This is what the court had in mind when laying down the guiding principles in the case of **Masoud Salim Hemed & Another –v- D.P.P. & 3 Others** where the court stated: - “It has now been established as a matter of best practice jurisdictional point that where the constitution or statute makes provision for a specific procedure for redressing certain grievances, that special procedure should be strictly followed. See the long line of cases restating the position including **The Speaker of the National Assembly –v- The Hon. James Njenga Karume,**Civil Application No. 92 of 1992 (unreported); **Kipkalya Kiprono Kones –v- Republic & Another ex-parte Kimani Wanyoike & 4 Others,**(2008) 3 KLR (EP 291:**and Wanyoike –vs- electoral Commission of Kenya** (No. 2) (2008) 2 KLR (EP) 43. In the **Karume**case, the Court of Appeal stated that: - “In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particulars grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 1. The applicant is the sister to the subject being among the people who are expected to see or hear from the subject almost on a daily basis or every so often have confirmed that they have not heard or seen the subject since 17th November, 1971. She stated that immediately following his disappearance, family members made inquiries among relatives and known associates in Bungoma and surrounding areas, but no information was obtained. 2. The accepted view is that there is presumption of death in the event that very person known to have been physically present within his homestead, place of work, neighbourhood, village, sub-location, location, ward, constituency, county, region or the Republic at large during his/her lifetime but suddenly goes missing and the fact of it remains so for a period of seven years it is taken to be a rule of law that is equivalent to death. That is, in the absence of evidence to the contrary, the presumption compels a finding of the fact of a person’s death once certain prescribed facts are established to the court’s satisfaction. It is also true to bear in mind where a man disappears and is unheard of for a long period of time, he may or he may not be dead. That fact must remain alive to the court exercising discretion and the presumption of death. 3. It is my considered view that the applicant has met the threshold set in *Section 118A*of the*Evidence Act* by providing evidence which raises a presumption that the subject is dead. 4. With regard to the prayer directed to the Registrar of Births and Deaths, Section 17 of the Births and Deaths Registration Act provides as follows: - *“Upon the death of any person the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same registration area as the deceased, and, in default of such other relatives, of each person present at the death and of the occupier of the house in which to his knowledge the death took place, and, in default of the persons hereinbefore in this section mentioned, of each inmate of such house, or of any person finding or taking charge of the body of such person or causing the body of such person to be buried or otherwise disposed of, to give notice within such time as may be prescribed to the registrar of the registration area in which the death took place.”* 1. For the foregoing reasons, the application for presumption of death of M.S. be and is hereby confirmed as one whose right to life under Art 26 of the Constitution is no longer tenable within the scope of the facts provided by the applicant to meet the criteria set out in Section 118A of the Evidence Act. That the Registrar of Births and Deaths of the Republic of Kenya is hereby ordered to issue a certificate of death in respect of the said M.S. whose better particulars shall be provided by the applicant. 2. Orders accordingly. **DATED AND SIGNED AT VIHIGA THIS 28TH DAY OF MAY, 2026** **R. NYAKUNDI** **JUDGE**