In re Jonathan Imbugwa Mahira (subject) [2022] KEHC 2501 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

MISCELLANEOUS CIVIL APPLICATION NO. E096 OF 2021

FRANCIS CHORE MAHIRA...................................APPLICANT

RULING

1. This an ex parte application brought under section 118 of the Evidence Act, Cap 80, Laws of Kenya. It seeks a declaration that one Jonathan Imbugwa Mahira, who I shall refer hereafter as the subject, be presumed dead and a death certificate issued.

2. The applicant avers that the subject was his brother, and that he left home in 2013, for an unknown place, in search of employment. He never came back. They searched for him in neighbouring countries, to no avail. They reported the matter at the Kilingili Police Station. He has attached to his affidavit, affidavits by his brothers James Mulemi Mukuru and Jonathan Kisibo Kesenwa to confirm the same.

3. The annexures to his affidavits include a letter from the police, the Kilingili Police Station, dated 5th December 2019, which confirms that the police received the report of a missing person and booked it as OB/11/5/12/2019. An abstract from the same station, dated 13th July 2021, indicates that the report was made by the applicant herein, by lodging an affidavit sworn on 13th September 2012 to that effect.

4. These proceedings were provoked by orders that I had made in Kakamega HCSC No. 880 of 2007, in the matter of the estate of Ephraim Mahila Imbugwa. The subject was one of the sons of the deceased in that succession cause, and had been appointed one of the administrators of the estate. The other administrators had approached the court to have the subject removed as an administrator and as beneficiary, to facilitate distribution of the estate. I declined, as they had no proof that he was dead, nor an order declaring him dead.

5. From the material in the application before me, I am satisfied that that the subject has not been heard of since 2013, which some nine years today. I shall accordingly allow the said application as prayed. Let the file in Kakamega HCSC No. 880 of 2007 be returned to the probate registry. I note that the estate is situate in Vihiga, and, therefore, the file should, thereafter, be placed before me so that I can make the relevant transfer order.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4th DAY OF February. 2022

W. MUSYOKA

JUDGE