[2012] KEHC 1967 (KLR)
The court found that Sammy Muia Mulawa had not been seen or heard from by his family, friends, or employer since 6th June, 2005, a period exceeding seven years. The applicant made diligent inquiries with all relevant parties, including the Kenya Army Headquarters, which confirmed his absence. Applying section 118A...
Source-derived case information.
- Citation
- [2012] KEHC 1967 (KLR)
- Parties
- Applicant: Nelly Kalau Mwikya; Respondent: Sammy Muia Mulawa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 78 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- Application allowed. Order for presumption of death granted.
- Judges
- CM Njagi
- Legal Topics
- Presumption of Death, Missing Persons, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelly Kalau Mwikya
Applicant
Sammy Muia Mulawa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether the court should make an order presuming Sammy Muia Mulawa dead under section 118A of the Evidence Act.
Ratio Decidendi
The court found that Sammy Muia Mulawa had not been seen or heard from by his family, friends, or employer since 6th June, 2005, a period exceeding seven years. The applicant made diligent inquiries with all relevant parties, including the Kenya Army Headquarters, which confirmed his absence. Applying section 118A of the Evidence Act, the court held that the statutory requirements for presumption of death had been satisfied. The absence of any evidence to the contrary or any indication that he was alive justified the grant of the order sought. The presumption remains rebuttable, but on the facts presented, the court was satisfied that the applicant was entitled to the order.
Court Disposition
Application allowed. Order for presumption of death granted.
Orders
- Sammy Muia Mulawa is hereby presumed to be dead as prayed.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
MISCELLANEOUS APPLICATION 78 OF 2012
IN THE MATTER OF THE ESTATE OF SAMMY MUIA (PRESUMED DEAD)
R U L I N G
This application is brought by way of a Chamber Summon dated 20th June, 2012. It seeks orders that the honourable court do make an order for presumption of death of Sammy Muia Mulawa, and that costs be in the cause.
The application is supported by the annexed affidavit of Nelly Kalau Mwikya, the wife of Sammy Muia, and the applicant herein. She deposes in that affidavit that on 6th June, 2005 her husband went with his work colleagues for games in Athi River but he never came back and nobody has ever seen him since that day. Her efforts to inquire from all sources including his employer have not yielded any fruits. She reported the matter to the Kenya Army Headquarters where he used to work, and they confirmed him missing since 6th June, 2005, thereby necessitating this application.
Section 118A of the Evidence Act states as follows-
“Where it is proved that a person has not been heard of for seven years by those who might be expected toy have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.”
It is now seven years since Sammy Muia Mulawa was last seen by his loved ones or by anyone else. If he were still alive, he would probably have been heard of by his family, relatives, workmates, or friends. Since none of those parties has heard of him since 2005, it is fair to presume that he is dead. However that presumption is rebuttable.
In the circumstances, I accordingly make an order to the effect that Sammy Muia Mulawa be and is hereby presumed to be dead as prayed. Costs will be in the cause.
DATEDand DELIVERED at NAIROBI this 12th day of July, 2012
L. NJAGI
JUDGE