Thuo & another [2025] KEHC 4548 (KLR)

Thuo & another (Miscellaneous Civil Case E145 of 2024) [2025] KEHC 4548 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4548 (KLR)

Republic of Kenya

In the High Court at Thika

Miscellaneous Civil Case E145 of 2024

FN Muchemi, J

April 3, 2025

In the matter of

Pauline Njambi Thuo

1st Applicant

Ferisita Wangari Thuo

2nd Applicant

Ruling

1. The application dated 2nd July 2024 seeks for orders of presumption of death in respect of Lawrence Kimani Thuo (LKT) and a certificate to issue pursuant to Section 118A of the Evidence Act.

2. The matter proceeded by way of viva voce evidence.

3. PW1, Pauline Njambi Thuo testified and adopted her supporting affidavit dated 2nd July 2024 as her testimony. She avers that the petitioners are the daughter and wife of the missing person who disappeared without trace on 13/11/2001. The witness states that they have looked for him in almost all morgues and hospitals within Nairobi and Central provinces but in vain. PW1 states that the said missing person hailed from Mangu location, Mwea Village Kiambu Sub County and that the area chief has confirmed his disappearance.

4. The witness states that at the time of his disappearance, the missing person was working for gain with Brookside Dairy and they reported to the family that the missing person was absent from work for two weeks forcing the family to report him missing.

5. PW1 further states that the family advertised his disappearance in the local media stations and newspapers. The applicants further aver that they have relatives in Rift Valley, Eldoret, Murang’a and Kiambu counties and they have all searched for their father and no single relative has heard about his appearance.

6. The witness states that the missing person had nine (9) adult children at the time he went missing and that seven (7) of them are alive.

7. The witness further states that they reported the incident at Ruiru Police Station but the missing person has not been traced to date.

8. PW2, Ferisita Wangari Thuo testified that the missing person was her husband who went missing in the year 2001. She further states that they reported the matter at Ruiru Police Station and advertised the same in the local radio stations.

9. The main issue for determination is whether there should be a presumption of death made in respect of Lawrence Kimani Thuo.

The Law 10. The law governing the circumstances in which a person may be presumed dead is set out in Section 118A of the Evidence Act as follows:-Where it is provided 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.

11. 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 the presumption of death.

12. The evidence of the applicants is briefly that LKT has been missing since 13th November 2001. In support of their contentions, a letter from the Chief of the area dated 3rd October 2022 is annexed. The applicants further stated that they reported the matter at Ruiru Police Station and advertised the disappearance in the local media stations and newspapers. A missing person report OB 42/13/11/01 in respect of LKT dated 19th November 2001 was attached. Three siblings of the applicant namely George Kimani Thuo, Veronica Ngina Thuo and John Gathonga Thuo and their auntie sister one Pauline Njambi Chogi attended court to confirm that their father was missing and could not be traced. The presumption of death is rebuttable. As such, the party seeking an order that the missing person be presumed dead must adduce sufficient evidence. The applicants have shown satisfactorily that they reported the matter at the local police station and that effort to look for the missing person have been made by the family. The area Chief is also aware of this matter, as stated in his letter.

13. After considering the evidence on record, I am of the considered vie that the subject should be presumed dead having not been traced for over twenty four (24) years.

14. The application dated 2nd July 2024 is hereby allowed in terms of prayers 1 and 2.

15. This being an exparte application, there shall be no order as to costs.

16. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 3RD DAY OF APRIL 2025. F. MUCHEMIJUDGE