[2011] KEHC 604 (KLR)
The court found that Michael Nyaga Karugendo had not been seen or heard from for over ten years, based on the applicant's affidavit and corroborating evidence from the area chief. Applying Section 118A of the Evidence Act, the court held that the statutory presumption of death was satisfied. The absence of any...
Source-derived case information.
- Citation
- [2011] KEHC 604 (KLR)
- Parties
- Applicant: Philis Wanyaga Njiru; Respondent: Michael Nyaga Karugendo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 119 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Application granted. Presumption of death declared.
- Legal Topics
- Presumption of Death, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philis Wanyaga Njiru
Applicant
Michael Nyaga Karugendo
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should make a presumption of death in respect of Michael Nyaga Karugendo under Section 118A of the Evidence Act.
- 2 Whether the applicant is entitled to orders under Rule 10 and 73 of the Law of Succession Act.
Ratio Decidendi
The court found that Michael Nyaga Karugendo had not been seen or heard from for over ten years, based on the applicant's affidavit and corroborating evidence from the area chief. Applying Section 118A of the Evidence Act, the court held that the statutory presumption of death was satisfied. The absence of any evidence to the contrary and the fulfillment of the legal requirements led the court to declare Michael Nyaga Karugendo presumed dead, thereby enabling the applicant to pursue further succession proceedings as appropriate under the Law of Succession Act.
Court Disposition
Application granted. Presumption of death declared.
Orders
- Michael Nyaga Karugendo is presumed and declared dead under Section 118A of the Evidence Act and Rule 10 of the Law of Succession Act.
- The applicant is at liberty to move the court for further orders as she may wish.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. CIVIL APPLICATION NO 119 F 2011
PHILIS WANYAGA NJIRU.....................................................................................................................PLAINTIFF
VERSUS
MICHAEL NYAGA KARUGENDO.......................................................................................................DEFENDANT
R U L I N G
The Applicant has filed this suit under Section 118A of the Evidence Act for an order on presumption of death AND an order under Rule 10 and 73 of Law of succession Act.
The same is supported by her own affidavit sworn on 5/8/2011 plus a letter from the Chief of Mankengi Location Embu.
The evidence is that one Michael Nyaga Karugendo and registered owner of Land Parcel No. Gaturi/Nembure 1706 has not been seen or heard of since the year 2000. His family does not know of his whereabouts.
It is over ten (10) years since his disappearance. From the evidence of the Applicant and the area chief the court is inclined to presume and declare Michael Nyaga Karugendo dead under the provisions of Section 18A of the Evidence Act and Rule 10 of the Law of Succession Act.
The Applicant may now move the court in any other manner she so wishes.
DELIVERED, SIGNED AND DATED AT EMBU IN OPEN COURT THIS 17TH DAY OF OCTOBER 2011.
H.I. ONG’UDI
JUDGE