[2024] KEHC 14355 (KLR)
The court found that the applicants had satisfied the requirements under Section 118A of the Evidence Act by demonstrating that Peter Njuguna Ngugi had not been heard from for over seven years, specifically 24 years. The court agreed with the respondents that it is not possible or necessary to specify the cause,...
Source-derived case information.
- Citation
- [2024] KEHC 14355 (KLR)
- Parties
- Applicant: Pauline Muthoni Ngugi; Applicant: Margaret Njoki Ngugi; Respondent: Registrar of Births and Deaths Nairobi District; Respondent: Director of Civil Registration Services Nairobi; Respondent: Hon Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Presumption of Death
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Presumption of Death, Evidence Act Section 118a, Missing Persons, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Muthoni Ngugi
Applicant
Margaret Njoki Ngugi
Applicant
Registrar of Births and Deaths Nairobi District
Respondent
Director of Civil Registration Services Nairobi
Respondent
Hon Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Presumption of Death
Legal Issues
- 1 Whether Peter Njuguna Ngugi should be presumed dead under Section 118A of the Evidence Act.
- 2 Whether the court can specify details such as cause, place, and time of death in an order for presumption of death.
Ratio Decidendi
The court found that the applicants had satisfied the requirements under Section 118A of the Evidence Act by demonstrating that Peter Njuguna Ngugi had not been heard from for over seven years, specifically 24 years. The court agreed with the respondents that it is not possible or necessary to specify the cause, place, or time of death in an order for presumption of death. The essential requirement is the absence of communication for the statutory period, which creates a rebuttable presumption of death. Accordingly, the court granted the order presuming Peter Njuguna Ngugi dead, with no further particulars as to the circumstances of death.
Court Disposition
application allowed
Orders
- Peter Njuguna Ngugi is hereby presumed dead.
- Costs in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
Ngugi & another v Registrar of Births and Deaths Nairobi District & 2 others (Miscellaneous Civil Application 1 of 2024) [2024] KEHC 14355 (KLR) (Civ) (24 October 2024) (Ruling)
Neutral citation: [2024] KEHC 14355 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Miscellaneous Civil Application 1 of 2024
HK Chemitei, J
October 24, 2024
Between
Pauline Muthoni Ngugi
1st Applicant
Margaret Njoki Ngugi
2nd Applicant
and
Registrar of Births and Deaths Nairobi District
1st Respondent
Director of Civil Registration Services Nairobi
2nd Respondent
Hon Attorney General
3rd Respondent
Ruling
1. In their Amended Notice of Motion dated 18th April 2024 the Applicants pray for orders that;(a)Peter Njuguna Ngugi be presumed dead.(b)The court issue such orders necessary to give effect and the cause of justice.
2. The application is based on the grounds thereof and the sworn affidavit of the Applicants dated the same day.
3. In their affidavit the Applicants deponed that the said Peter Njuguna Ngugi was their brother and that he disappeared on 29th June 2000. They said that all efforts to trace him have been fruitless.
4. The Applicants attached copies of the Occurrence Book from Buruburu police station. They also attached a letter dated 30th January 2024 from the said police station.
5. They also attached a copy of the certificate of confirmation of grant issued on account of the estate of the late Lawrence Ngugi Njuguna their deceased father. This is Succession Cause No 1588 of 2001 Nairobi High Court. The said person is mentioned therein as a beneficiary.
6. One Milkha Nyende on behalf of the Respondents filed a replying affidavit sworn on 8th April 2024. The gist of her affidavit is an opposition to this court granting orders which will specify the details that are usually contained in a certificate of death.
7. In other words, my understanding of the said opposition is for this court in granting the orders of presumption of death not to include such details like the cause of death, the place and such other requirements as contained in a death certificate.
8. I have perused the application and I do agree with the Respondent that in an application for presumption of death it is not possible to indicate when, where and how the person met his death. What is crucial is an order from this court that the person is presumed death as per the provisions of Section 118 A of the Evidence Act .
9. This section in a nutshell though rebuttable presumes that once a person is not heard for seven years, he can be presumed to have died. It goes on to state 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 case at hand clearly is in tandem with the law. The said person has not been heard for the last 24 years and the only presumption is that he has since passed on.
11. In the premises I allow the application and find that Peter Njuguna Ngugi is hereby presumed dead.
12. Costs in the cause.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 24THDAY OF OCTOBER 2024. H K CHEMITEIJUDGE