1. Before this Court is the Application dated 18th December 2023 by which the Applicant, Mercy Nyawira Muriuki is seeking the following orders: -
i. That Joseph Mbugua Mwaura be and is hereby presumed dead.
ii. That the Registrar of Death do issue a certificate of death in respect of the said Joseph Mbugua Mwaura.
2. The application is supported by the grounds on the face of the application and the affidavit of the Applicant sworn on the 18th day of December 2023.
3. The Applicant deponed that she is a wife to the subject, Joseph Mbugua Mwaura, having married him in the year 2002 under the Kikuyu customary law and that the union was blessed with three issues, all male. The Applicant also deponed that the subject’s other surviving family members are his mother, Nancy Wangui Mwaura and Michael Ngige Mwaura, a brother.
4. It was the Applicant’s case that Mr. Joseph Mbugua Mwaura disappeared on 30th April 2014 while in the company of one Teresia Njeri Kungu following a kidnapping incidence at Total Petrol Station, Airport, Chomazone, Nairobi and that he has since not been seen or heard of and that his whereabouts remain unknown to date.
5. That following the disappearance, the subject’s family have unsuccessfully made efforts to trace him. The Applicant deponed that the disappearance of the subject was reported at Embakasi Police Station on 30th April 2014 and was consequently booked under OB No 47/30/4/2014. A copy of the OB extract was attached to the application as “Annex MMM3.”
6. That further, the kidnapping incidence was also aired on K24 with a detailed description of the subject and that members of the public were requested to assist in tracing him.
7. That to date he has not been seen neither has the family gotten any leads from the public on his whereabouts.
8. It was the Applicant’s case that it is now more than seven (7) years since the subject was last seen or heard of by the Applicant or any of the above stated family members who are ordinarily expected to have seen or heard of him if he was still alive.
9. Consequently, it was the Applicant’s prayer that the subject be presumed dead and a certificate in respect thereof accordingly be issued by this court.
10. The Applicant stated in her pleadings that a copy of a death certificate will no only enable the family have closure on the matter but will also assist the family to process an educational policy with Metropolitan Cannon Life Assurance Limited which the subject had taken for the benefit of their son, Elvis Mwaura.
Analysis and determination
11. I have considered the application, the supporting affidavit of Mercy Nyawira Muriuki, the deceased wife and that of the Elvis Mwaura, the deceased eldest son 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.”
12. 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.
13. The applicant is the wife to the subject and with whom they have had three children. She stated that the subject was abducted on 30th April 2024 and that he has since not been seen or heard from. The subject’s eldest son Elvis Mwaura, also swore an affidavit dated 6th December 2023 stating that all efforts by the family to trace the subject have come to nought.
14. Apart from his wife and the son, it was further deponed by the applicant that the subject’s mother and siblings, all being people who are expected to see or hear from the subject have confirmed that they have not heard of or seen the subject since 30th April 2014.
15. I have confirmed from annexures to the affidavits the disappearance of the subject was reported by the Embakasi Police Station on 30th April 2014 and booked under OB No 47/30/4/2014.
16. From the above and taking into account that it is now slightly over ten years since the subject disappeared, I am satisfied that the Application meets the requirement as set under the applicable law 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.
17. 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.”
18. In the premises, I am satisfied that the instant application is merited and hereby allow the same and order as follows: -
i. That Mbugua Mwaura be and is hereby presumed dead.
ii. That the Registrar of Births and Deaths is hereby ordered to issue a Certificate of Death in respect of the said Joseph Mbugua Mwaura.
19. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Nderitu h/b for Waiganjo - For the Applicant
i. That Joseph Mbugua Mwaura be and is hereby presumed dead.
ii. That the Registrar of Death do issue a certificate of death in respect of the said Joseph Mbugua Mwaura.
2. The application is supported by the grounds on the face of the application and the affidavit of the Applicant sworn on the 18th day of December 2023.
3. The Applicant deponed that she is a wife to the subject, Joseph Mbugua Mwaura, having married him in the year 2002 under the Kikuyu customary law and that the union was blessed with three issues, all male. The Applicant also deponed that the subject’s other surviving family members are his mother, Nancy Wangui Mwaura and Michael Ngige Mwaura, a brother.
4. It was the Applicant’s case that Mr. Joseph Mbugua Mwaura disappeared on 30th April 2014 while in the company of one Teresia Njeri Kungu following a kidnapping incidence at Total Petrol Station, Airport, Chomazone, Nairobi and that he has since not been seen or heard of and that his whereabouts remain unknown to date.
5. That following the disappearance, the subject’s family have unsuccessfully made efforts to trace him. The Applicant deponed that the disappearance of the subject was reported at Embakasi Police Station on 30th April 2014 and was consequently booked under OB No 47/30/4/2014. A copy of the OB extract was attached to the application as “Annex MMM3.”
6. That further, the kidnapping incidence was also aired on K24 with a detailed description of the subject and that members of the public were requested to assist in tracing him.
7. That to date he has not been seen neither has the family gotten any leads from the public on his whereabouts.
8. It was the Applicant’s case that it is now more than seven (7) years since the subject was last seen or heard of by the Applicant or any of the above stated family members who are ordinarily expected to have seen or heard of him if he was still alive.
9. Consequently, it was the Applicant’s prayer that the subject be presumed dead and a certificate in respect thereof accordingly be issued by this court.
10. The Applicant stated in her pleadings that a copy of a death certificate will no only enable the family have closure on the matter but will also assist the family to process an educational policy with Metropolitan Cannon Life Assurance Limited which the subject had taken for the benefit of their son, Elvis Mwaura.
Analysis and determination
11. I have considered the application, the supporting affidavit of Mercy Nyawira Muriuki, the deceased wife and that of the Elvis Mwaura, the deceased eldest son 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.”
12. 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.
13. The applicant is the wife to the subject and with whom they have had three children. She stated that the subject was abducted on 30th April 2024 and that he has since not been seen or heard from. The subject’s eldest son Elvis Mwaura, also swore an affidavit dated 6th December 2023 stating that all efforts by the family to trace the subject have come to nought.
14. Apart from his wife and the son, it was further deponed by the applicant that the subject’s mother and siblings, all being people who are expected to see or hear from the subject have confirmed that they have not heard of or seen the subject since 30th April 2014.
15. I have confirmed from annexures to the affidavits the disappearance of the subject was reported by the Embakasi Police Station on 30th April 2014 and booked under OB No 47/30/4/2014.
16. From the above and taking into account that it is now slightly over ten years since the subject disappeared, I am satisfied that the Application meets the requirement as set under the applicable law 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.
17. 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.”
18. In the premises, I am satisfied that the instant application is merited and hereby allow the same and order as follows: -
i. That Mbugua Mwaura be and is hereby presumed dead.
ii. That the Registrar of Births and Deaths is hereby ordered to issue a Certificate of Death in respect of the said Joseph Mbugua Mwaura.
19. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Nderitu h/b for Waiganjo - For the Applicant