[1] Before the Court for determination is the Notice of Motion dated 21 st July 2025. It was filed by Charles Agwa Chacha under Section 118A of the Evidence Act, Cap 80 of the Laws of Kenya, and Sections 386, 387 and 388 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya, for orders that:
[a] The presumption of death be made in respect of Joseph Odero Agwa.
[b] The Court do issue an order directing the Registrar of Births and Deaths at Rachuonyo North, South and East to issue a Death Certificate in respect of Joseph Odero Agwa.
[2] The application was premised on the grounds set out on the face thereof and in the Supporting Affidavit sworn by the applicant, Charles Agwa Chacha on 21 st July 2025. The applicant averred that Joseph Odero Agwa was picked from his home by some unknown people in the month of May 2019; and that his entire family has been waiting for his retain in vain. The applicant, who is the father of the subject, averred that he made a missing person report Oyugis Police Station vide OB No. 13/28/05/2019; and that the Police promised to make efforts to trace his son but so far there has been no feedback from the Police. The applicant further averred that he has been following up on the whereabouts of the subject with family members, friends, neighbours and the area chief, with no positive outcome. The applicant further deposed that, as at the time of filing the application, the subject had been missing for about six years.
[3] At paragraph 9 of the Supporting Affidavit, the applicant averred that the subject held a bank account with Equity Bank, Oyugis Branch, being Account No. 1260 1637 03104 which has been dormant since 2019. He annexed a copy of the Bank Card as Annexure CAC-3 to his affidavit. The applicant also annexed copies of the OB entry aforementioned as well as a copy of a letter from the area chief dated 14 th July 2025, and urged the Court to grant the orders sought to enable them have closure in all respects possible.
[4] The applicant also relied on the affidavits sworn by other family members, namely:
[a] Henry Otieno Agwa , a brother to the missing person
[b] Lavender Adhiambo Agwa , a daughter in law to the applicant and wife of Henry Otieno Agwa;
[c] Christine Auma Agwa , the mother of the subject and wife of the applicant.
[5] The said deponents adverted to the very same facts deposed to by the applicant. Hence, the issue for consideration is whether the applicant is entitled to the prayers sought vide his Notice of Motion dated 21 st July 2025.
[6] The application was filed pursuant to Section 118A of the Evidence Act which provides:
“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.”
[7] It is therefore manifest that, in so far as the instant application was filed before the prescribed period of seven years, it is premature, there being no indication that the leave of the Court was sought or granted for the application be filed earlier.
[8] The applicant also relied on Sections 386, 387 and 388 of the Criminal Procedure Code. Section 386 stipulates that:
“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; or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence; or
(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 inflicted; 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 as full a report 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 offence, a person finding the body or becoming aware of the death shall immediately give information thereof to the nearest administrative officer or police officer.”
[9] It is therefore the procedure that before the orders sought can be granted, investigations be conducted by the Police and by a magistrate by way of an inquiry. This is because Section 387(6) of the Criminal Procedure Code states that:
“6) In the case of an inquiry relating to a missing person believed to be dead the magistrate shall at the termination of the inquiry report the case together with 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 for by section 118A of the Evidence Act should be reduced and if so what lesser period should, in the circumstances of the death, be substituted for the period of seven years.”
[10] Further to the foregoing, Section 388(1) of Criminal Procedure Code provides:
( 1) The Director of Public Prosecutions may at any time direct a magistrate to hold an inquiry, in accordance with section 387, into the cause of a particular death to which the provisions of that section apply and shall in the case of missing person believed to be dead give such directions as he deems fit.
[11] It is now trite that where an alternative procedure is provided for by statute, the same ought to be followed to conclusion before the intervention of the Court can be invited. In the case of Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
[12] In the result, it is my finding that the instant application is premature. The same is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 20 TH DAY OF FEBRUARY 2026
[a] The presumption of death be made in respect of Joseph Odero Agwa.
[b] The Court do issue an order directing the Registrar of Births and Deaths at Rachuonyo North, South and East to issue a Death Certificate in respect of Joseph Odero Agwa.
[2] The application was premised on the grounds set out on the face thereof and in the Supporting Affidavit sworn by the applicant, Charles Agwa Chacha on 21 st July 2025. The applicant averred that Joseph Odero Agwa was picked from his home by some unknown people in the month of May 2019; and that his entire family has been waiting for his retain in vain. The applicant, who is the father of the subject, averred that he made a missing person report Oyugis Police Station vide OB No. 13/28/05/2019; and that the Police promised to make efforts to trace his son but so far there has been no feedback from the Police. The applicant further averred that he has been following up on the whereabouts of the subject with family members, friends, neighbours and the area chief, with no positive outcome. The applicant further deposed that, as at the time of filing the application, the subject had been missing for about six years.
[3] At paragraph 9 of the Supporting Affidavit, the applicant averred that the subject held a bank account with Equity Bank, Oyugis Branch, being Account No. 1260 1637 03104 which has been dormant since 2019. He annexed a copy of the Bank Card as Annexure CAC-3 to his affidavit. The applicant also annexed copies of the OB entry aforementioned as well as a copy of a letter from the area chief dated 14 th July 2025, and urged the Court to grant the orders sought to enable them have closure in all respects possible.
[4] The applicant also relied on the affidavits sworn by other family members, namely:
[a] Henry Otieno Agwa , a brother to the missing person
[b] Lavender Adhiambo Agwa , a daughter in law to the applicant and wife of Henry Otieno Agwa;
[c] Christine Auma Agwa , the mother of the subject and wife of the applicant.
[5] The said deponents adverted to the very same facts deposed to by the applicant. Hence, the issue for consideration is whether the applicant is entitled to the prayers sought vide his Notice of Motion dated 21 st July 2025.
[6] The application was filed pursuant to Section 118A of the Evidence Act which provides:
“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.”
[7] It is therefore manifest that, in so far as the instant application was filed before the prescribed period of seven years, it is premature, there being no indication that the leave of the Court was sought or granted for the application be filed earlier.
[8] The applicant also relied on Sections 386, 387 and 388 of the Criminal Procedure Code. Section 386 stipulates that:
“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; or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence; or
(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 inflicted; 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 as full a report 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 offence, a person finding the body or becoming aware of the death shall immediately give information thereof to the nearest administrative officer or police officer.”
[9] It is therefore the procedure that before the orders sought can be granted, investigations be conducted by the Police and by a magistrate by way of an inquiry. This is because Section 387(6) of the Criminal Procedure Code states that:
“6) In the case of an inquiry relating to a missing person believed to be dead the magistrate shall at the termination of the inquiry report the case together with 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 for by section 118A of the Evidence Act should be reduced and if so what lesser period should, in the circumstances of the death, be substituted for the period of seven years.”
[10] Further to the foregoing, Section 388(1) of Criminal Procedure Code provides:
( 1) The Director of Public Prosecutions may at any time direct a magistrate to hold an inquiry, in accordance with section 387, into the cause of a particular death to which the provisions of that section apply and shall in the case of missing person believed to be dead give such directions as he deems fit.
[11] It is now trite that where an alternative procedure is provided for by statute, the same ought to be followed to conclusion before the intervention of the Court can be invited. In the case of Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
[12] In the result, it is my finding that the instant application is premature. The same is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 20 TH DAY OF FEBRUARY 2026