1. The petitioners moved this Court by way of an originating summon brought under section 118A of the Evidence Act; Rule 10 of Probate and Administration Rules; section 17 of the Births and Death Registration Act and section 3A of the Civil Procedure Act. They seek an order declaring that Peter Matulu Kioko be presumed dead and a certificate of death be issued to the petitioners herein
2. The summon is supported by the affidavit of Joseph Komu Kioko sworn on 30th April 2025. He deponed that Peter Matulu Kioko the subject, is there brother, and has not been seen or heard from since 26th February 2013. The petitioners state that they placed an advertisement in the Daily Nation newspaper on 3rd March 2025 and have made all efforts to trace him since 2013 without success.
3. In further support of their summons, the petitioners rely on the letter from the assistant Chief Ikombe Sub-Location dated 07th February 2025, an Occurrence Book entry No 23/08/10/24 missing person report and an undated newspaper reporting a missing person.
4. I have considered the application, the supporting affidavit and documentation therein
5. Under section 118 of the Evidence Act, Cap 80 Laws of Kenya, a person is presumed dead if he disappears and is not heard from for a period of 7 years. The Section 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.”
6. The presumption of death is therefore conditional upon proof of continuous absence and lack of communication for at least seven years. The burden lies on the applicant to demonstrate that diligent efforts have been made to trace the missing person. The presumption of death is not automatic; it must be grounded on cogent evidence showing that the missing person has not been heard of for the statutory period.
7. In the present case, the petitioners allege that the subject was last seen on 26th February 2013. However, the evidence tendered does not substantiate this claim. The Occurrence Book entry dated 8th October 2024 does not specify the name or details of the missing person. Moreover, the report was made more than eleven years after the alleged disappearance, raising doubts about its reliability.
8. Further, the Assistant Chief’s letter dated 7th February 2025 states that the subject is unknown to him and merely references a family agreement indicating that efforts to trace him have failed. This letter does not independently corroborate the claim that the subject has been missing since 2013.
9. This court therefore finds that, the statutory requirement of seven years of continuous absence has not been satisfied. The Occurrence Book entry was made in October 2024, less than seven years before the filing of the present application in May 2025. The petitioners have therefore failed to demonstrate that the subject has been missing for the requisite period.
10. The Court further notes that while the petitioners placed a newspaper advertisement in March 2025, this was done recently and cannot retroactively cure the evidentiary gaps. The petitioners’ evidence is inconsistent, lacks specificity, and does not meet the threshold set out in Section 118 of the Evidence Act. The petitioners have not discharged the burden of proof. They have failed to establish that the subject has been missing and unheard of for seven years, nor have they demonstrated sufficient efforts to trace him.
11. Accordingly, the application dated 16th May 2025 is dismissed for lack of merit. There shall be no orders as to costs.
2. The summon is supported by the affidavit of Joseph Komu Kioko sworn on 30th April 2025. He deponed that Peter Matulu Kioko the subject, is there brother, and has not been seen or heard from since 26th February 2013. The petitioners state that they placed an advertisement in the Daily Nation newspaper on 3rd March 2025 and have made all efforts to trace him since 2013 without success.
3. In further support of their summons, the petitioners rely on the letter from the assistant Chief Ikombe Sub-Location dated 07th February 2025, an Occurrence Book entry No 23/08/10/24 missing person report and an undated newspaper reporting a missing person.
4. I have considered the application, the supporting affidavit and documentation therein
5. Under section 118 of the Evidence Act, Cap 80 Laws of Kenya, a person is presumed dead if he disappears and is not heard from for a period of 7 years. The Section 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.”
6. The presumption of death is therefore conditional upon proof of continuous absence and lack of communication for at least seven years. The burden lies on the applicant to demonstrate that diligent efforts have been made to trace the missing person. The presumption of death is not automatic; it must be grounded on cogent evidence showing that the missing person has not been heard of for the statutory period.
7. In the present case, the petitioners allege that the subject was last seen on 26th February 2013. However, the evidence tendered does not substantiate this claim. The Occurrence Book entry dated 8th October 2024 does not specify the name or details of the missing person. Moreover, the report was made more than eleven years after the alleged disappearance, raising doubts about its reliability.
8. Further, the Assistant Chief’s letter dated 7th February 2025 states that the subject is unknown to him and merely references a family agreement indicating that efforts to trace him have failed. This letter does not independently corroborate the claim that the subject has been missing since 2013.
9. This court therefore finds that, the statutory requirement of seven years of continuous absence has not been satisfied. The Occurrence Book entry was made in October 2024, less than seven years before the filing of the present application in May 2025. The petitioners have therefore failed to demonstrate that the subject has been missing for the requisite period.
10. The Court further notes that while the petitioners placed a newspaper advertisement in March 2025, this was done recently and cannot retroactively cure the evidentiary gaps. The petitioners’ evidence is inconsistent, lacks specificity, and does not meet the threshold set out in Section 118 of the Evidence Act. The petitioners have not discharged the burden of proof. They have failed to establish that the subject has been missing and unheard of for seven years, nor have they demonstrated sufficient efforts to trace him.
11. Accordingly, the application dated 16th May 2025 is dismissed for lack of merit. There shall be no orders as to costs.