Miscellaneous Application E022 of 2022

Case Metadata
Case Number:	Miscellaneous Application E022 of 2022
Parties:	In re Declaration of the Death of Kipruto Arap Chebutuyai
Date Delivered:	08 Dec 2022
Case Class:
Court:	High Court at Bomet
Case Action:	Ruling
Judge(s):	Roseline Lagat-Korir
Citation:	In re Declaration of the Death of Kipruto Arap Chebutuyai (Miscellaneous Application E022 of 2022) [2022] KEHC 16215 (KLR) (8 December 2022) (Ruling)
Advocates:	Mr. Kipkorir for Appellants
Court Division:	Civil
County:	Bomet
Advocates:	Mr. Kipkorir for Appellants
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

In re Declaration of the Death of Kipruto Arap Chebutuyai (Miscellaneous Application E022 of 2022) [2022] KEHC 16215 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16215 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Application E022 of 2022

RL Korir, J

December 8, 2022

In the matter of

1^st Applicant

DKS

2^nd Applicant

ECC

3^rd Applicant

Ruling

1.The Applicants filed a Notice of Motion Application dated 21^st June 2022 which sought the following Orders:I. That K Arap C be and is hereby presumed dead.II. Thatthis Honourable Court do order the Registrar of Births and Deaths to issue a Death Certificate in respect of K Arap CIII. Thatconsequent to the grant of the prayers above, the Honourable Court be pleased to issue such further direction and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.IV. Thatcosts be in the cause.

2.The Application was brought under Section 118A of the Evidence Act, Article 2 (5), 46 (1), 48 and 159 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by David Kibii Siele on 21^st June 2022.

3.The Applicable law in the instant Application is Section 118A of the Evidence Act. It states 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.”

4.In the case of In re E N K [2017] eKLR, Njunguna J 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.”

5.I have read and carefully considered the Application herein, the Supporting Affidavit by David Kibii Siele and the annexures thereto and the main issue for determination is whether the Applicants have made a case for the grant of the orders sought. When the Application came up for directions on 19^th September 2022, I ordered the close relatives be present on the next hearing date for examination by the court.

6.The Applicants attended court on 15^th November 2022, The 1^st Applicant (K Arap C ) who was the brother of K Arap C (missing person) testified that he was about 100 years old. He told the court that the missing person disappeared very many years ago and he had never married. That at the time of his disappearance, the missing person had not disagreed with anyone although the family considered that he had some mental instability. The 1^st Applicant further testified that they had looked for him for a long time to no avail.

7.The 2^nd Applicant (DKS) who swore the Supporting Affidavit on behalf of the other Applicants told the court that he was the nephew of the missing person. He stated that the missing person was a resident of Mosonik location and that he had disappeared without a trace in the year 1975.That the missing person was not married and had no children.

8.It was the 2^nd Applicant’s testimony that the missing person was mentally unstable and that he would be currently aged around 106 years. That as a family they had tried to trace him but their efforts had proven futile.

9.The Applicants have attached a letter from the Chief of Mosonik location where the deceased hailed from. The letter stated that Kipruto Arap Chebutuyai went missing in the year 1975.

10.It is a requirement for such an Application to be allowed that the said person ought not to have been heard of for a seven-year period by those people who might be expected to have heard of him if he were alive. According to the information now in court, the Applicants who were close relatives to the missing person have not heard from him for a period of 47 years.

11.It is my finding that the Applicants have satisfied this court as to the requirements of the law through the evidence presented herein.

12.With regard to the prayer directed to the Registrar of Births and Deaths, Section 17 of the Birth and Deaths Registration Act provides as follows:-“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.”

13.In my view, the declaration of presumption of death of the missing person herein by this court means that he is dead by operation of law, and that the said death has to be registered by the Registrar as required by law. I will thus order the Registrar to register the death of the subject herein.

14.Consequently, I allow the Application dated 21^st June 2022 and order as follows:-i)An order be and is hereby issued by this court presuming that Kipruto Arap Chebutuyai is dead.ii)The Registrar of Births and Deaths is hereby ordered to issue a Certificate of Death in respect of the said K Arap C.

15.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 8^TH DAY OF DECEMBER, 2022..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Ms. Chepngetich holding brief Mr. Kipkorir for the Appellants, Kiprotich(Court Assistant).

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