https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10406

Matuku (Miscellaneous Application E091 of 2025) [2026] KEHC 10406 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10406 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Application E091 of 2025 TM Matheka, J July 13, 2026 IN THE MATTER OF SECTION 118A OF THE EVIDENCE ACT (CAP 80 LAWS OF KENYA) AND IN THE MATTER OF LAW OF SUCCESSION ACT (CAP 160 LAW OF KENYA) AND IN THE MATTER OF AN APPLICATION BY RODAH NDULULU MATUKU FOR A DECLARATION OF PRESUMPTION OF DEATH OF JOHN MATUKU MUMO In the matter of Rodah Ndululu Matuku Applicant Ruling 1.The Application before me is the Notice of Motion dated 30/09/2025 filed under certificate of urgency under Sections 1A, 1B, 3A, 63 (c) & (e) of the Civil Procedure Act (CPA), Order 40 Rules 1, 2, 4 & 10 and Order 51 Rule 1 & 3 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.That this honorable court be pleased to declare that John Matuku Mumo who has been missing since 1996 and has not been seen, heard from or contacted any member of his family and community despite due inquiries, is hereby presumed dead pursuant to section 118A of the Evidence Act (Cap 80 Laws of Kenya)c.That consequent to the declaration of presumption of death, the Registrar of Births and Deaths of the Republic of Kenya be and is hereby directed to issue a certificate of death in respect of John Matuku Mumo forthwith.d.That this honorable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of the case.e.That the costs of this Application be provided in the cause. The Application 2.The Application is supported by the grounds on its face, the Affidavit of Rodah Ndululu Matuku sworn on the same day and a Further Affidavit sworn by Francis Mwanzia Matuku on 30/09/2025. She deposed that she is the lawful wife of John Matuku Mumo (husband) and together, they were blessed with six children. That, sometime in or about the year 1996, the said husband abruptly deserted their matrimonial home without any explanation and has never been seen, heard from or contacted any member of their family or local community. 3.That, in or about the year 1997, she reported his disappearance to the area chief and the relevant police authorities with a view of tracing his whereabouts but despite their efforts and widespread inquiries, no information has ever been obtained about him. That, since his disappearance, she has, together with family members, relatives and community, continuously and diligently made inquiries to friends, neighbors and persons who might naturally have heard from him but all such inquiries have yielded no trace of his whereabouts. 4.That, to this date, her husband has remained completely unheard of and neither her nor any other person close to him has received any communication, sign of life or information regarding his well being or location. That, on 26/09/2025, the area Assistant Chief issued an official letter (RNM 1) confirming that John Matuku Mumo left the homestead in 1996 and never returned or been heard from since. 5.That, according to advice from her advocates which she verily believes to be true, the court has power to presume dead a person who has been missing for a period exceeding 7 years without any communication. That, at the time of swearing the affidavit, 29 years had lapsed since her husband’s disappearance. 6.That, further advice from her advocates is that, without a judicial declaration of presumption of death, the Registrar of Births and Deaths has no legal mandate to issue a certificate of death. 7.That, the prolonged absence of her husband has caused immense emotional anguish, psychological distress and uncertainty to her and her children as they have been left without closure as to his fate or whereabouts. That, the lack of a formal declaration of presumption of death has also created administrative and legal uncertainty in matters that require proof of his death thereby causing undue hardship to her and her family. That, the Application has been brought in good faith for the sole purpose of obtaining closure for her family and community and not for any improper motive or collateral purpose. 8.Francis Mwanzia Matuku deponed that he is the third-born child of John Matuku Mumo and Rodah Ndululu Matuku and that his parents were married under the Kamba Customary Law and blessed with six children. Mr. Mwanzia basically reiterated the depositions in his mother’s affidavit. 9.The Application was canvassed through viva voce evidence. 10.PW 1 was Rodah Ndululu Matuka and she testified that her husband is John Matuku Mumo and he disappeared in 1996. That, when he left home, he said he had gone to look for work. She reported the disappearance to Kibwezi Police Station and was not given OB number. She attempted to report the matter afresh at the same police station but the police officers declined and told her to seek recourse in court. 11.She informed the court that she lives in Kibwezi and that the Chief is aware of the disappearance and had issued a letter dated 26/09/2025. That, she had six children with her husband before he disappeared. 12.On cross-examination by the court, she said that he disappeared in 1996 and when asked where she had looked for him, she said that she had not looked for him. She said that she lives in Salama, Maikuu Sub-Location, Nthangu Location, Kibwezi Sub-County where she bought land. That, their original home is Mikuyuni-Kangesu where no one stays but there is a piece of land. That, her husband has a sister by the name name Ng’achaa Nyamai . That, her home is Kibwezi Kikoo. That, two children are with her in the same area. 13.PW2 was Francis Mwanzia Matuku and he said that he was in court because their father disappeared when they were children. He acknowledged Rodah as his mother and said that they are six siblings. That he is now 34 years and cannot recall his father. That he has never seen his father since he was 18 years and has never followed up. That, his mother reported in 1997 and the area Chief wrote a letter. That, they reported to Kibwezi police station and have not reported afresh because the police said they could not write OB for a disappearance of over 7 years. 14.PW3 was Judy Mbula Mwenga and she testified that the Applicant and John Matuku Mumo are her parents. That, she was born in 1984 and is 41 years old. That from when she was 18 years, she never saw her father and her mother says that he went to look for work. The Submissions 15.It was submitted that section118A of the Evidence Act is the law governing the circumstances in which a person may be presumed dead and that the law recognizes a presumption where a person who was previously known to be physically present suddenly goes missing and remains unheard of for a continuous period of seven years. That the Applicant, who is the lawful wife of the missing person, confirmed that she has not heard from him for the last twenty-nine years despite enquiries from his relatives and those within his wider family circle. 16.Reliance was placed on Re Osman Bachit (1997)4 MLJ 445 where the learned Judge held that in circumstances where compelling circumstantial evidence exists pointing to the probable death of a missing person, the family or interested parties cannot be compelled to endure the full seven-year statutory period purely as a matter of formality. 17.It was submitted that the Applicant and her family have endured nearly twenty-nine years of uncertainty, anguish and unanswered questions regarding the whereabouts of their husband and father. This court was urged to bring closure to this long-standing agony by declaring that John Matuku Mumo is presumed dead. That, such a finding will not erase the sorrow of his disappearance but will allow his family to reclaim their peace and finally begin the process of healing. 18.Having looked at the Application, evidence and submissions, the only issue for determination is whether John Matuku Mumo should be presumed dead. Analysis and Determination 19.Under Rule 10 of the Probate and Administration Rules, such an application should to be brought by way of Summons, supported by affidavit. It states;10.Application for order presuming deathAn application for an order presuming the death of a person of whose death there is no sufficient written evidence and to 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. 20.The present Application was brought by way of Notice of Motion supported by an affidavit which is a procedural lapse. In the interests of justice however and since no prejudice will be occasioned to a third party, it is my view that the court should indulge the Applicant and determine the Application as it is. 21.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.” 22.The Evidence Act provides for the burden of proof.107.Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 23.The Applicant is the one who has the burden of proof that she has not heard from the husband for 7 years . She told the court that John Matuku Mumo (the subject) disappeared in 1996 after saying that he had gone to look for work. That, in 1997, she reported the disappearance at Kibwezi police station but was unable to retrieve the OB number as she was told that the relevant records were not available. She exhibited a letter dated 26/09/2025, from her area Chief confirming that she was the wife of the subject and that the rightful heirs were six children and the Applicant. She stated the all her enquiries about the subject, from his family and people within his circle, were futile and that she had not heard from him for 29 years. 24.It is noteworthy that the Applicant’s deposition of having sired all the six children with the subject is faulty because according to the Chief’s letter, the ages of the children as at 26/09/2025 were; 41,41,33,29,26 & 19. This means that, if the subject disappeared without a trace in 1996-29 years ago from 2025-then it is practically impossible for the last two children to have been sired by the subject. 25.Be that as it may, two of the Applicant’s children, Judy (41) and Francis (33) testified that since attaining the age of majority, nearly twenty years ago for both, they had never seen or heard from their father. 26.Who are the other persons who would be reasonably expected to hear from a person? These would include the siblings , the parents and other members of the extended family. It is noteworthy though some were named when she was cross examined by the court, the applicant did not provide any evidence that the subject had not communicated with these others for over 7 years . 27.Has the applicant proved that they have not heard from the subject for 7 years?. 28.The wife of the subject testified that when he disappeared she report to the police. However, she has not produced any evidence to prove that true – that indeed he disappeared in 1996 and that she reported the matter either to the police , or thereafter. Neither is there evidence that she reported to any other authority or made any other efforts to look for him. 29.In fact, the only evidence presented by the applicant is that of a letter from the assistant chief Mikuyuni Sub-Location, Kibwezi Location –The letter simply states –Date: 26th 09 2025TO WHOM IT MAY CONCERNRE- JOHN MUTUKU MUMO (DESERTED FROM home SINCE 1996)Below find the rightful heirs of the above deserted perNAME ID NO RELATIONSHIP AGERodah Ndululu Matuku 31299949 Wife 57Judy Mbura Mwenga 25378397 Daughter 41Mumo Matuku 33493333 Son 41Francis Mwanzia Matuku 29503885 Son 33Virginia Kanini Mungwaa 33330826 Daughter 29Jane Wanjiru Ndululu 37898317 Daughter 26Anthony Mumo Matuku Son 19Kindly assist this family to inherit what left behind by their deserted father here above. 30.This letter is expected to be considered proof that the said John Matuku Mumo has been missing since 1996. However, there is no evidence from the assistant chief that the office had received information about the alleged disappearance anytime from 1996 to 2025. 31.On its face this letter is for identifying the heirs of the subject. It is not evidence that he has been missing for more that 7 years . It only goes to confirm that information about the alleged missing came to light in 2025 32.There is still no evidence that there was any report to the police – even recently that the said James Matuku Muema has been missing since 1996. The only evidence available is that the applicant approached the authorities about his missing in 2025 . There is no evidence as to when he actually went missing .He could have been missing since 2025 .– because that is the time the wife took action. 33.It was upon her to establish that indeed this man has been missing since 1996.I have considered the cited authority cited however, the provisions of the Evidence Act section 118 A , as read with s. 107, 108 and 109 of the Evidence Act are clear that it must be proved that they have not seen or heard from him for 29 years. That the efforts to trace the subject have been futile and no contact or communication has been forthcoming from the subject. 34.It is therefore my considered view that there is no credible evidence that the subject has been missing for the last 29 years to warrant a presumption of death 35.This case is almost similar to In re estate of Ngomo Wasua (Deceased) [2015] KEHC 997 (KLR) where the court found that the applicant had not produced evidence to prove the application. Similarly in In re Application for Presumption of Death of Julius Mutui Kimweli [2016] KEHC 6772 (KLR)the application was declined.In re Presumption of Death of Daniel Aengwo [2019] KEHC 2033 (KLR) is a good example of the evidence required. In the circumstances, I am of the view that the applicant has failed to prove that the subject has been missing since 1996. The application is struck out with no orders as to costs. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 13TH JULY 2026MUMBUA T MATHEKAJUDGECA DanApplicant’s AdvocatesMutuku Munyao & Co. Advocatesmutukuwakiliadv@outlook.com