High Court 13313 of 2021

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION MISCELLANEOUS CAUSE NO. E. 125 OF 2021 IN THE MATTER OF PRESUMPTION OF DEATH OF NJOROGE MWANIKI GICHAMBA MARGARET MUGERE WAWERU...........................................................APPLICANT RULING (1) Before this Court is the Notice of Motion dated 21st June 2021 by which the Applicant seeks orders as follows:1. THAT NJOROGE MWANIKI GICHAMBA be presumed dead. 2. THAT the Registrar of Death do issue a Death Certificate in respect of the said NJOROGE MWANIKI GICHAMBA. 3. THAT costs be in the cause. (2) The Application which was premised upon Section 118A of the Evidence Act, Section 3A of the Civil Procedure Act and Order 50 Rule (1) of the Civil Procedure Rules and all other enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant. (3) The Applicant MARGARET MUGERE WAWERU who testified in open Court is the wife of the Subject NJOROGE MWANIKI GICHAMBA, the two having married under Kikuyu Customary Laws in 1953. She told the Court that the Subject walked away from his homestead on or about 17th March 1997 and never returned. That at the time he disappeared the Subject was about 80 years old. The Applicant told the Court that she has neither seen or heard from the Subject since his disappearance. That the matter was reported to the local chief and at Kabete Police Station vide OB No. 34 of 21st May 2021. (4) The Applicant stated that despite searches made at various hospitals and mortuaries the Subject was never traced either dead or alive. Since it has been 24 years since the Subject disappeared from his home the Applicant prays that he be presumed dead. (5) PW2 CHRISTOPHER GICHUHI and PW3 ESTHER WANGUI GICHAMBA are the son and daughter of the Subject. They both confirm that their father left the family homestead in March 1997 and never returned. That searches made in various hospitals and mortuaries failed to yield fruit. That since 1997 to date the Subject has not been spotted anywhere. PW2 and PW3 both support this application that the Subject be presumed dead. (6) The evidence from the three (3) witnesses is that the subject NJOROGE MWANIKI GICHAMBA who was an elderly gentleman left his homestead in March 1997 and to date almost twenty-four (24) years later has never returned. The disappearance of the old man was reported to Police vide OB Number 24 of 21ST May 2021. Annexture MMG-1 is a copy of the Police Abstract. (7) Additionally a letter from the Chief Kangemi Location dated 17th May 2021 (Annexture (MMG 1(a)) confirms that the Subject disappeared from his area of residence in Kangemi on 17th March 1997 and was never seen again. The witnesses told the Court that searches conducted at various hospitals and mortuaries bore no fruit. (8) Section 118A of the Evidence Act, Cap 80, Laws of Kenya provides 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.” (9) The Subject was an elderly married man, who had a wife and children. The Applicant being the wife of the Subject with whom he had lived with for over forty (40) years would have been expected to see or hear from her husband on a daily basis. Likewise PW2 and PW3,

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