In Re: Yekoyasi Nkalubo (Miscellaneous Application No. 006 of 2017) [2018] UGHCFD 15 (8 May 2018)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA-MAKINDYE (FAMILY DIVISION) MISC. APPLICATION NO. 006 OF 2017** 5 **IN THE MATTER OF THE FAMILY OF YEKOYASI NKALUBO (MISSING PERSON SINCE 1984), AND IN THE MATTER OF AN APPLICATION BY SENKUMBA JOHN (SON)**

#### 10 **NKALUBO (MISSING PERSON SINCE 1984)**

## **RULING**

**FOR AN ORDER OF A PRESUMPTION OF THE DEATH OF YEKOYASI**

#### **BEFORE: HON. LADY JUSTICE KETRAH KITARIISIBWA KATUNGUKA**

### **1. Introduction**

This Application is brought by Senkumba John Nkalubo under **Section 47(2) of the Registration of Persons Act, No. 4 of 2015; Section 98** of the **Civil Procedure Act, Cap. 71** and **Order 52 Rules 1 & 2** of the **Civil Procedure** 20 **Rules, S. I. 71-1**, by way of Notice of Motion, seeking an Order that Yekoyasi Nkalubo, a former resident of Kayunga LCI, Kayunga Parish, Kayunga Sub County, Ntengyeru County be declared presumed dead, having been missing since 1984.

#### 2. **Representation**

25 The Applicant is represented by Counsel Ssemakula Muganwa Charles of M/S Muganwa Nanteza Advocates.

#### 3. **Attendance**

3.1. The following persons were present at the hearing and identified themselves 30 to Court as follows;

- i) Nankumba Betty; National ID No. **CF640231028YDD**, Card No. **003707494** born **20/05/64** - ii) Sebugwawo Godfrey; National ID No. **CM83023102IXID**, Card No. **002258849** born **22/12/83** - 5 iii) Senkumba John Nkalubo; National ID No. **CM71047100J6RD,** Card No. **000248825** – born **09/11/71** - iv) Nkalubo Timothy; National ID No. **CM9303210537PH**, Card No. **018611218** born **23/08/93**. - v) Bunkedeko Patrick, although present, did not present a National Identity 10 Card. - 4. The Issue for Court's consideration is;

# **Whether an order of Presumption of Death can be granted in respect of Yekoyasi Nkalubo**

- 15 4.1. It was submitted for the Applicant that; - a) Under **Section 47(2) of the Registration of Persons Act**, *where a person is presumed dead in accordance with subsection (1), any person who would have been under a duty under section 43 of this Act to give notice of the death of the person being presumed dead may apply for an order of a* 20 *presumption of death in a court of competent jurisdiction, and the order, once issued, shall be served upon the Authority and shall have the same effect as a certificate of death issued under this Act.* - b) The Police Report on file details the findings of the Police and Paragraph 4 25 thereof states that Yekoyasi Nkalubo could not be traced for the last 32 years; that an advert was run in the newspapers in 2016; and that the Local

Council leaders, clan members, and beneficiaries, have all confirmed that Yekoyasi Nkalubo has been missing since 1984.

He therefore prayed that this Court orders a Presumption of Death over Nkalubo in order to enable application for appointment of a legal representative to manage and 5 distribute his estate.

#### **5. Resolution**

- a) I have considered the application, the supporting affidavit and all supporting documents, including the Newspaper advert placed in Bukedde 10 Newspaper on 31/03/2016 with a picture alleged to be that of Yekoyasi Nkalubo; I have also seen the Police Report, the letter from Nsimbe Obadia dated 30/03/2016 to the effect that the last funeral rights were held in respect of Yekoyasi Nkulubo on 18/04/1986; I have also seen a letter from the family of the said late Yekoyasi Nkalubo dated 18/03/2018 confirming 15 the disappearance of Yekoyasi Nkalubo since 1984, and a letter from Kayunga North LCI Chairperson dated 18/03/2018 confirming the fact that Yekoyasi has not been seen since 1984; Nankumba Betty also informed court on oath that Nkalubo Yekoyasi her father has not been seen since 1984. - 20 b) The available evidence points to the fact that Nkalubo Yekoyasi has not been seen since 1984. - c) Pursuant to **Section 47(2) of the Registration of Persons Act, No. 4 of 2015**, Nkalubo Yekoyasi is a missing person who is presumed dead and is declared so.

On the above premises, and pursuant to **Section 98 of the Civil Procedure Act, Cap. 71**, and **Order 52 Rules 1 & 2 of the Civil Procedure Rules, SI 71-1**, I order as follows;

- i) Yekoyasi Nkalubo an adult male person and former resident of Kayunga - 5 LCI, Kayunga Parish, Kayunga Sub County, Ntengyeru Country is declared presumed dead. - ii) The Applicant shall bear the Costs of this Application.

# **KETRAH KITARIISIBWA KATUNGUKA JUDGE 8/5/2018**