1. Before this Court is the Application dated 12th August 2022 by which the Applicant, JOHN WATUTI NJUGUNA is seeking the following orders: -
i. Spent
ii. That Samuel Gichanga Njuguna be and is hereby presumed dead
iii. That the Registrar of Death do issue a Certificate of Death in respect of the said Samuel Gichanga Njuguna.
2. The application is supported by the grounds on the face of the application and the Supporting Affidavit of the Applicant sworn on the 12th August 2022 as well as a further Affidavit sworn on 30th July 2024.
3. The Applicant depones that the is a brother to Samuel Gichanga Njuguna (the subject) and that he is one of the administrators of the estate of his deceased father to which the subject was a beneficiary.
4. The Applicant further depones that the subject disappeared in the year 1990 and that to date, he has not been heard of or seen and that his whereabouts remain unknown by people who are ordinarily expected to see or hear from him.
5. That following the subject’s disappearance, the subject’s family have unsuccessfully made efforts to trace him. The Applicant deponed that the disappearance of the subject was reported at Naivasha Police Station on 16th April 1994 and was consequently booked under OB No 29/16/4/1994 a copy of the OB extract was attached to the application as “Exhibit JW5.”
6. Further that in the year 2009 when their mother Elizabeth Wangari Njuguna (deceased) passed on, the subject’s family ran an announcement at Inooro FM of Royal Media Services Limited, notifying the general public, the subject included, of their matriarch’s demise and inviting them for the funeral. The Applicant attached as exhibit “JW6” a copy of the Radio’s booking sheet dated 14th August 2008.
7. That despite the report to the police and the announcement at Inooro FM, the subject never showed up and that more than seven (7) years have lapsed since he was seen or heard of by the Applicant or any of the above stated family members who are expected to have seen or heard of him if he were still alive. The Applicant annexed as exhibit “JW.7” a copy of the letter dated 23rd April 2018 from Assistant Chief Munyu Sub-Location, Kimabu County in support of this position.
8. That the subject’s other surviving family members are Margaret Warigia Ng\'ang\'a (sister) and Alice Nyambura Njuguna (sister). The Applicant annexed as exhibit “JW.2” a copy of the Chiefs Letter dated 4th April 2007 showing that the subject was the Applicant’s brother and a member of the 4th house to Njuguna Kirimbi (deceased) who was their father. The Applicant attached as “exhibits 3” and “exhibit 4” copies of their deceased father’s Certificate of Death and their mother\'s Burial Permit respectively.
9. It was therefore the Applicant’s prayer that in the circumstances of this case, it would be just, equitable and in the interest of justice that the Application be allowed and orders accordingly issued.
Analysis and determination
10. I have considered the application, the supporting affidavit of JOHN WATUTI NJUGUNA, the subject’s brother in support of the application and all the annexures thereto. This is an application governed by section 118A of the Evidence Act which 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.”
11. In the case of re E N K [2017] eKLR, the court held that: -
“The presumption of death is a rebuttable presumption which can be reversed if sufficient evidence is adduced to the contrary. Therefore, before this presumption is made, sufficient evidence has to be adduced in court to prove presumption of death.
12. I have perused the instant application as well as the Nairobi Succession Cause No. 872 of 2009 (In the Estate of Njuguna Kirimbi alias Njuguna Kirembi (deceased), from which it emanates. I note the following; -
i. On 23rd November, 2017 the Applicant herein together with the other administrators applied for Rectification of the Certificate of Confirmation of Grant dated 27th August 2008. The orders sought in the application for rectification included a prayer that the name of the subject herein (Samuel Gichanga Njuguna) removed from the list of the beneficiaries and his shares taken by John Watuti Njuguna (the applicant herein), Alice Nyambura Njuguna and Margaret Warigia Ng’ang’a who were all said to be the subject’s siblings from their deceased father’s fourth house.
ii. The basis of the rectification was that the subject disappeared in the year 1990 and he has since not been seen or heard from by persons who would ordinarily be expected to see or hear from him. Further, that that the subject was not married and did not leave behind any child.
iii. As part of prosecuting their application for rectification of the certificate of confirmation of grant, the Applicants on 28th November 2018 filed an affidavit attaching thereto, among others, a letter dated 23rd April 2018 from Assistant Chief Munyu Sub-Location (exhibit 3) stating that the subject was a resident of the location and that he was last seen in 1990 and that his whereabouts remained unknown until then. According to the Assistant chief’s said letter, the subject’s siblings included John Watuti Njuguna (the Applicant herein), Margaret Wangia Nganga and Alice Nyambura Njuguna.
iv. In the said affidavit of 28th November 2018, the Applicant deponed that the affidavit was filed in support of the application for rectification of the grant and pursuant to the court’s directions of 16th April 2018 that the Applicants furnishes a letter from the area chief confirming that the subject disappeared in 1990 and remained untraced despite best efforts by the family.
v. On 28th November 2011 when the application for rectification of grant came up in court for hearing, the court gave directions that for subject to be presumed dead, an appropriate application needed to be filed by the Applicants under the relevant law.
vi. On 22nd January 2019, the Applicant herein filed an application under section 118A of the evidence Act and supported by the affidavit of John Matuti Njuguna dated 21st January 2019, seeking the following prayers; -
a) That the Application be certified urgent
b) That Samuel Gichanga Njuguna be and is hereby presumed dead.
c) That the Registrar of Death do issue a Certificate of Death in respect of the said Samuel Gichanga Njuguna.
vii. The Applicant’s application dated 21st January 2019 was heard on 30th May 2022 and Ruling reserved. On 4th August 2022, the court gave its decision on 4th August 2022 and found that an application to seek the said beneficiary (subject) declared dead could not be made under the main succession cause. The Applicants/Administrators were therefore advised to file a miscellaneous application.
viii. It is from the said court’s decision and direction that the Applicant filed the instant Application dated 12th August 2012.
13. Having given the background of this Application, I will not then proceed and consider the Application on its merits.
14. In this Application, the court is being asked to issue an order presuming the subject, one Samuel Gichanga dead, The basis of the Application is that the subject disappeared in 1990 when he went to Mombasa and has not been seen or heard of by the Applicant as well as all persons who would ordinarily be expected to see or hear of him.
15. It is further deponed that the subject was not married and that he did not also leave any children. That his only surviving siblings are John Watuti Njuguna (brother), Margaret Wangia Nganga (sister) and Alice Nyambura Njuguna (sister). That the subject’s parents are both deceased.
16. Pursuant to the directions of this court of 22nd July 2024, the Applicant filed a further affidavit detailing that the subject is yet to be traced. The Applicants annexed to the affidavit is a copy of a letter dated 26th July 2024 from the OCS Naivasha Police Station confirming the position.
17. I have confirmed from annexures to the affidavits the disappearance of the subject was reported at the Naivasha Police Station on 16th April 1994 and booked under OB No 29/16/4/1994. I have also confirmed from the Applicant’s further affidavit dated 26th July 2024 that as at 23rd July 2024, the subject had not seen or heard of by persons who would ordinarily be expected to see or hear of him.
18. From the above and taking into account that it is now slightly over thirty-four years since the subject disappeared, I am satisfied that the Application meets the requirement as set under section118A of the evidence Act, that the subject ought not to have been seen or heard of for a seven-year period by those people who might be expected to have heard of him if he were alive.
19. On the prayer to have the Registrar of Births and Deaths to issue a Certificate of Death in respect of the subject, Section 17 of the Births and Deaths Registration Act which is the relevant provision provides that: -
“Upon the death of any person the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same registration area as the deceased, and, in default of such other relatives, of each person present at the death and of the occupier of the house in which to his knowledge the death took place, and, in default of the persons hereinbefore in this section mentioned, of each inmate of such house, or of any person finding or taking charge of the body of such person or causing the body of such person to be buried or otherwise disposed of, to give notice within such time as may be prescribed to the registrar of the registration area in which the death took place.”
20. In the premises, I am satisfied that the instant application is merited and hereby allow the same and order as follows: -
i. That Samuel Gichanga Njuguna be and is hereby presumed dead.
ii. That the Registrar of Death do issue a Certificate of Death in respect of the said Samuel Gichanga Njuguna.
21. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
3RD DAY OF OCTOBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Nderitu h/b for Waiganjo - For the Applicant