REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC CIVIL APPLICATION NO. E272 of 2022
In The Matter Of Section 118A of the Evidence Act ( Cap 80) Laws of Kenya
And
In the Matter of an Application for Presumption of Death of WANJIKU MWEKA ( Presumed Dead)
BY
VANESSA WAMBUI NDERITU……………………..1st APPLICANT
WILLIAM MUTHAMA MWEKA……………………2nd APPLICANT
RULING
1. Before this Court is the Notice of Motion dated 16th December 2022 by which the Applicants seek orders that:
1) Spent
2) Spent
3) THAT this honourable Court be please to issue and order that the subject herein WANJIKU MWEKA be presumed dead
4) THAT this honourable Court do grant an order to the Registrar to issue a certificate of Death in respect of WANJIKU MWEKA
5) THAT costs be in the cause.
2. The Application is brought under Section 118 A of the Evidence Act, Order 50 Rule 6 of the Civil Procedure Rules, 2010 Section 3A and 63 (e) of the Civil Procedure Act and all other enabling provisions of the law and was supported by the Affidavit of the 1st Applicant sworn on even date.
3. The 2nd Applicant testified as PW1. He is an elder brother of the Subject WANJIKU MWEMA. He testified that she has not been seen or heard of since 2011.
4. His efforts to locate her have not been successful and she has not communicated with him or the other siblings or her children. Some of the steps he has taken to trace her include, reporting to Magumo Police Station on 25th July 2021and placing an advertisement in the Nation Newspaper on 28th July 2021.
5. At the time of her disappearance, she had four Children namely.
1) Vanessa Wambui Nderitu born on 13th March 1994
2) Weston Wanjohi born on 15th July 1995
3) Mike Murimi born on 29th September 2002
4) Sheriff Mwika born on 9th December 2003
6. He testified that his sister did not formalise her marriage with the father of the children.
7. He also testified that together with his Siblings they have prosecuted the Succession cause in Respect of their deceased parents estate vide NAIROBI HC P & A 758 of 2011 as consolidated with NAIROBI HC P& A 757 of 2011, IN THE MATTER OF THE ESTATE OF GODFREY MWEKA Alias MWEKA NGARU Alias MWEKA WA NGARU & ZIPPORAH WANJIRU MWEKA.
8. THAT for the Children to access their entitlement to the Estate it is necessary to make this application.
9. The Ist Applicant testified as PW2. She asked the court to adopt her Replying Affidavit. She confirmed that the efforts to trace the mother have not borne fruit and the mother has not contacted either her or her siblings.
10. Her mother whose full names are LYDIA WANJIKU MWEMA had been diagnosed as suffering from mental illness at the time of her disappearance as per medical report marked VWN 2 .
11. The 2nd Applicant has also produced Police Abstract showing a report was made to the police at Magumo Police Station and an advertisement placed in the Daily Nation. The Area Chief has also presented a letter confirming that the Subject has disappeared without trace since 2011.
12. The other children of the deceased namely Weston Wanjohi, Mike Murimi and Sherriff Mwika were also present in Court and expressed their support for the Application.
13. On the evidence before the Court, it is evident that the Subject was last seen alive in 2011. She has been missing for 11years. She has not communicated with the people who are expected to see or hear from her.
14. In view of the foregoing, I am satisfied that the Applicants have demonstrated by credible and reliable evidence that this is a matter suitable to make orders under Section 118A of the Evidence Act.
15. I find that it is in the interests of justice to grant the applicant the orders sought given the circumstances necessitating the filing of the petition. I therefore invoke the inherent powers of this Court under Section 3A of the Civil Procedure Act and allow the application in terms prayer (3) and (4)
ORDERS
1) The Subject herein WANJIKU MWEKA is presumed dead.
2) The Registrar to issue a certificate of Death in respect of WANJIKU MWEKA
3) Costs be in the Cause.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…3rd …DAY OF ……March……..2023.
……………………………
P M NYAUNDI
HIGH COURT JUDGE
In the presence of ……Kiptoo h/b for Omariba Adv for Applicant
Karani Court Assistant
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC CIVIL APPLICATION NO. E272 of 2022
In The Matter Of Section 118A of the Evidence Act ( Cap 80) Laws of Kenya
And
In the Matter of an Application for Presumption of Death of WANJIKU MWEKA ( Presumed Dead)
BY
VANESSA WAMBUI NDERITU……………………..1st APPLICANT
WILLIAM MUTHAMA MWEKA……………………2nd APPLICANT
RULING
1. Before this Court is the Notice of Motion dated 16th December 2022 by which the Applicants seek orders that:
1) Spent
2) Spent
3) THAT this honourable Court be please to issue and order that the subject herein WANJIKU MWEKA be presumed dead
4) THAT this honourable Court do grant an order to the Registrar to issue a certificate of Death in respect of WANJIKU MWEKA
5) THAT costs be in the cause.
2. The Application is brought under Section 118 A of the Evidence Act, Order 50 Rule 6 of the Civil Procedure Rules, 2010 Section 3A and 63 (e) of the Civil Procedure Act and all other enabling provisions of the law and was supported by the Affidavit of the 1st Applicant sworn on even date.
3. The 2nd Applicant testified as PW1. He is an elder brother of the Subject WANJIKU MWEMA. He testified that she has not been seen or heard of since 2011.
4. His efforts to locate her have not been successful and she has not communicated with him or the other siblings or her children. Some of the steps he has taken to trace her include, reporting to Magumo Police Station on 25th July 2021and placing an advertisement in the Nation Newspaper on 28th July 2021.
5. At the time of her disappearance, she had four Children namely.
1) Vanessa Wambui Nderitu born on 13th March 1994
2) Weston Wanjohi born on 15th July 1995
3) Mike Murimi born on 29th September 2002
4) Sheriff Mwika born on 9th December 2003
6. He testified that his sister did not formalise her marriage with the father of the children.
7. He also testified that together with his Siblings they have prosecuted the Succession cause in Respect of their deceased parents estate vide NAIROBI HC P & A 758 of 2011 as consolidated with NAIROBI HC P& A 757 of 2011, IN THE MATTER OF THE ESTATE OF GODFREY MWEKA Alias MWEKA NGARU Alias MWEKA WA NGARU & ZIPPORAH WANJIRU MWEKA.
8. THAT for the Children to access their entitlement to the Estate it is necessary to make this application.
9. The Ist Applicant testified as PW2. She asked the court to adopt her Replying Affidavit. She confirmed that the efforts to trace the mother have not borne fruit and the mother has not contacted either her or her siblings.
10. Her mother whose full names are LYDIA WANJIKU MWEMA had been diagnosed as suffering from mental illness at the time of her disappearance as per medical report marked VWN 2 .
11. The 2nd Applicant has also produced Police Abstract showing a report was made to the police at Magumo Police Station and an advertisement placed in the Daily Nation. The Area Chief has also presented a letter confirming that the Subject has disappeared without trace since 2011.
12. The other children of the deceased namely Weston Wanjohi, Mike Murimi and Sherriff Mwika were also present in Court and expressed their support for the Application.
13. On the evidence before the Court, it is evident that the Subject was last seen alive in 2011. She has been missing for 11years. She has not communicated with the people who are expected to see or hear from her.
14. In view of the foregoing, I am satisfied that the Applicants have demonstrated by credible and reliable evidence that this is a matter suitable to make orders under Section 118A of the Evidence Act.
15. I find that it is in the interests of justice to grant the applicant the orders sought given the circumstances necessitating the filing of the petition. I therefore invoke the inherent powers of this Court under Section 3A of the Civil Procedure Act and allow the application in terms prayer (3) and (4)
ORDERS
1) The Subject herein WANJIKU MWEKA is presumed dead.
2) The Registrar to issue a certificate of Death in respect of WANJIKU MWEKA
3) Costs be in the Cause.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…3rd …DAY OF ……March……..2023.
……………………………
P M NYAUNDI
HIGH COURT JUDGE
In the presence of ……Kiptoo h/b for Omariba Adv for Applicant
Karani Court Assistant