High Court 4234 of 2026

4. I have considered the application the issue for determination is whether the applicant has made out a case for JMK to be declared dead. The procedure as to missing person is provided under Section 386 of the Criminal Procedure Code (cap 75 Laws of Kenya) which provides as follows: “ (1) 5. The officer in charge of a police station, or any other officer specially empowered by the Minister in that behalf, on receiving information that a person— (a) has committed suicide; or (b) has been killed by another or by an accident; (c) has died under circumstances raising a reasonable suspicion that some other person has committed an ofience; (d) is missing and believed to be dead; shall immediately give information thereof to the nearest magistrate empowered to hold inquests, and, unless otherwise directed by any rule made by the Minister, shall proceed to the place where the body of the deceased person is, and shall there make an investigation and draw up a report on the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), the marks appear to have been infiicted; and the report shall in the case of paragraph (a), (b) or (c); be forwarded forthwith to the nearest magistrate empowered to hold inquests; and in the case of paragraph (d) shall immediately send to the Director of Public Prosecutions through the Commissioner of Police a full a report as soon as possible together with details of all supporting evidence relating to the circumstances surrounding the disappearance and the grounds upon which the death of that person is presumed to have taken place. (2) When, except in the case of a missing person believed to be dead there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient to do so, he shall, subject to any rule made by the Minister, forward the body, with a view to its being examined, to the nearest medical officer or other person appointed by the Minister in that behalf, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render the examination useless. (3) When the body of a person is found or a person has committed suicide or has been killed by another or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an ofience, a person finding the body or becoming aware of the death shall immediately give information thereof to the nearest administrative officer or police officer.” Thus, for a person to be presumed dead, the following steps have to be followed: 1. The report is made at the nearest Police Station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4234/eng@2026-03-11 2

page 2 of 3

2. The Officer -In-charge of the Police Station shall give the information there of the nearest Magistrate empowered to hold inquests. 3. The Magistrate shall conduct an inquest and report his findings to the Director of Public Prosecutions and shall make recommendations as to whether or not the period regarding the presumption of death provided by the Section 118A of the Evidence Act (cap 80) should be reduced and if so what lesser period in the circumstances of the death, should be substituted for the period of seven years. There is no evidence that a public inquest was conducted as provided under this Section. 6. The presumption of death occurs when a person has not been heard of for a period of seven years and this allows the court to issue an order declaring the person dead. Upon such a declaration, the persons related to him or her can pursue the legal process like inheritance, ending a marriage and any other that requires prove that the person is dead. The party or person requiring such declaration is supposed to proof that the person has disappeared without trace. The applicant is supposed to proof that the person disappeared without trace. 7. In this case the applicant has proved that the subject Jennifer Monicah Kondo has not been seen or heard of since the year 2003. 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.” 8. The applicants have proved that the subject has been missing for the statutory period of seven years. The applicant has demonstrated that the matter was reported to the Police and to the Chief of the area where the missing person comes from, see annexures MKMM – 1 and MKMM – 2. Section 51 of the Law of Succession Act and Rule 10 of the Probate and Administration Rules speak to the requirement that in an application for the grant of Letters of Administration, a copy of the Death Certificate is mandatory. It further provides that: “ An application or order presuming 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 ground of the application.” 9. The applicants have moved the court by way summons supported by an affidavit confirming that the subject has been missing for over twenty years without trace. Twenty years is a long period for a person to be missing without trace. 10. In the circumstances, I find that the applicants have demonstrated that there is sufficient cause for this court to presume and declare the subject dead. I therefore order that: a. The subject herein Jennifer Monicah Kondo is presumed dead. b. The Registrar of Birth and Deaths is ordered to issue a Certificate of Death in respect of Jennifer Monicah Kondo. DATED, SIGNED AND DELIVERED AT KITUI THIS 11TH DAY OF MARCH, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4234/eng@2026-03-11 3

page 3 of 3