Before this court is a notice of motion dated 22 nd May 2026 for declaration of presumption of death of one Mukubwa Khaukwa by which the applicants seek orders as follows:
i) Spent
ii) That the court do issue an order to declare and presume one Mukubwa Khaukwa is lost and dead
iii) That an order be issued to the registrar of births and deaths to issue a death certificate in respect to the said Mukubwa Khaukwa.
The application is presented under section 118A of the Evidence Act, Cap 80 Laws of Kenya. It is supported by an affidavit of Jenipher Mwenya Mufuayia, the 1 st applicant sworn on the 22 nd May 2026. The applicants, Jenipher Mwenya Mufuayia and David Achero are sister-in-law and nephew to the said Mukubwa Khaukwa respectively. The applicants’ case is that Mukubwa Khaukwa was the brother to the late Johanes Mufuayia Kutoi who was the husband and father to the applicants respectively. They assert that Mukubwa Khaukwa left home in the early 1970s and has not been seen or heard from by anyone in the family. The said Mukubwa Khaukwa was not married at the time of his disappearance. Their case is that it has been more than 50 years since anybody heard from him. The applicants have annexed a letter from the area chief dated 16/9/2026 confirming that Mukubwa Khaukwa has been missing from the 1970s. The chief has further confirmed that the known family members are the two applicants.
Upon reading the notice of motion and the affidavit in support, the court should determine whether the applicants have made out a case to be granted the order of declaration and presumption of death of Mukubwa Khaukwa.
On the presumption of death, the applicable law is found at 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 from him if he were alive, there shall be a rebuttable presumption that he is dead.”
Before the presumption can be applicable the person has to have been unheard of for a period of seven years. This court notes that the subject disappeared from home in the early 1970s. He has not been heard from for more than 50 years and I am satisfied that the applicants have tendered sufficient evidence that is in compliance with the provisions of section 118A of the Evidence Act to enable this court make a decision on the presumption of the death of the subject.
Rule 10 and section 51 of the Law of Succession Act, provide that in an application for grant of letters of administration, a copy of the death certificate is mandatory. It further provides:
“Application for 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 grounds of the application .”
Though the applicants did not move the court through summons as is prescribed, I find that the failure to do so is not fatal in light of the provisions of Article 159 (2) (d) of the Constitution which requires court to administer justice without undue regard to procedural technicalities.
In the circumstances I find that there is sufficient evidence tendered by the applicants in their notice of motion and supporting affidavit dated 22 nd May 2026 and i order as follows:
a) The subject herein Mukubwa Khaukwa is presumed dead
b) The registrar of births and deaths to issue a certificate of death in respect to Mukubwa Khaukwa
c) There shall be no order as to costs
It is so ordered.
SIGNED, DATED AND DELIVERED THIS
22 ND SEPTEMBER 2026
D.O. ONYANGO
HIGH COURT JUDGE
2
i) Spent
ii) That the court do issue an order to declare and presume one Mukubwa Khaukwa is lost and dead
iii) That an order be issued to the registrar of births and deaths to issue a death certificate in respect to the said Mukubwa Khaukwa.
The application is presented under section 118A of the Evidence Act, Cap 80 Laws of Kenya. It is supported by an affidavit of Jenipher Mwenya Mufuayia, the 1 st applicant sworn on the 22 nd May 2026. The applicants, Jenipher Mwenya Mufuayia and David Achero are sister-in-law and nephew to the said Mukubwa Khaukwa respectively. The applicants’ case is that Mukubwa Khaukwa was the brother to the late Johanes Mufuayia Kutoi who was the husband and father to the applicants respectively. They assert that Mukubwa Khaukwa left home in the early 1970s and has not been seen or heard from by anyone in the family. The said Mukubwa Khaukwa was not married at the time of his disappearance. Their case is that it has been more than 50 years since anybody heard from him. The applicants have annexed a letter from the area chief dated 16/9/2026 confirming that Mukubwa Khaukwa has been missing from the 1970s. The chief has further confirmed that the known family members are the two applicants.
Upon reading the notice of motion and the affidavit in support, the court should determine whether the applicants have made out a case to be granted the order of declaration and presumption of death of Mukubwa Khaukwa.
On the presumption of death, the applicable law is found at 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 from him if he were alive, there shall be a rebuttable presumption that he is dead.”
Before the presumption can be applicable the person has to have been unheard of for a period of seven years. This court notes that the subject disappeared from home in the early 1970s. He has not been heard from for more than 50 years and I am satisfied that the applicants have tendered sufficient evidence that is in compliance with the provisions of section 118A of the Evidence Act to enable this court make a decision on the presumption of the death of the subject.
Rule 10 and section 51 of the Law of Succession Act, provide that in an application for grant of letters of administration, a copy of the death certificate is mandatory. It further provides:
“Application for 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 grounds of the application .”
Though the applicants did not move the court through summons as is prescribed, I find that the failure to do so is not fatal in light of the provisions of Article 159 (2) (d) of the Constitution which requires court to administer justice without undue regard to procedural technicalities.
In the circumstances I find that there is sufficient evidence tendered by the applicants in their notice of motion and supporting affidavit dated 22 nd May 2026 and i order as follows:
a) The subject herein Mukubwa Khaukwa is presumed dead
b) The registrar of births and deaths to issue a certificate of death in respect to Mukubwa Khaukwa
c) There shall be no order as to costs
It is so ordered.
SIGNED, DATED AND DELIVERED THIS
22 ND SEPTEMBER 2026
D.O. ONYANGO
HIGH COURT JUDGE
2