Presumed dead: What it takes to get court order

What happens when a kin disappears without trace and efforts to find him or her bear no fruit? And for how long should a family wait for the lost kin to be presumed dead and seek a death certificate?

Well, most people hold on to hope, believing that the lost relative might one-day walk back home or be found in far land.

It has worked for some as a long-lost kin who was considered dead, walks back home to the surprise of the family. In some communities, certain cleansing ceremonies must be performed before the relative, who was presumed dead, is allowed back to the compound.

What many might not know is that there is a provision in law that allows relatives to move to court and obtain an order, compelling the government to issue a death certificate, on presumption that the relative is dead.

One of the requirements is that the missing person must have vanished for more than seven years and not heard or seen him during the period by those who might be expected to have contact with him or her.

It is, however, not a walk in the park for such a request to be granted. Courts have dismissed tens of cases, saying the application for one to be presumed dead has not met the required threshold.

Last month, High Court judge George Odunga rejected a petition by Ms Jacinta Nthenya Musau who sought an order for her long-lost husband,Gregory Musau Muasya, to be presumed dead and that a certificate of death be issued.

She moved to court last year saying her husband, who worked for a steel company in Nairobi, was last seen alive in 2006.

Ms Nthenya told the court that she got married to Mr Musau in 1980 under Kamba Customary Law. All was well until October 14, 2006 when he left for Nairobi and since then, no one has seen or heard from him despite efforts to trace him.

Ms Ntenya said she had even informed the area chief who wrote a letter on April, 24, 2009 confirming that Mr Musau disappeared mysteriously.

She reported him as missing to Machakos police on December 17, 2019 and was issued with a police abstract indicating that her husband was yet to be found and that her efforts to trace him in the last 14 years had been futile.

She pleaded with the court to issue the order so that she could access his National Social Security Fund (NSSF) dues to assist in the family upkeep.

In rejecting the application, judge Odunga noted that the only evidence that Mr Musau was missing was that he was last seen alive in October 2006 and despite Ms Nthenya’s arguments that the search for him had been futile, no disclosures were made to support the case.

The judge said the police abstract does not confirm that the disappearance of Musau was reported because the report was in respect of loss of NSSF membership card.

“It is not indicated by the applicant (Nthenya) what steps, if any, have been made to search for the subject amongst his relatives such as parents and siblings,” the judge said.

Justice Odunga said a declaration that a person is presumed dead is a serious presumption that ought only to be made when the court is satisfied that based on the circumstances of the case, there is sufficient material that the person must be dead.

“It is not merely the lapse of time that the court considers, but also the steps made by the applicant to trace the whereabouts of the subject. Such steps as inquiries made amongst the close relatives, reporting of missing person to the police, (possibly) newspaper advert are all steps which may go towards showing that the subject, in all probability, must be dead,” he said.

Evidential threshold

He declined the request saying he was not satisfied that the case warrants declaring Mr Musau presumed dead.

In yet another case, Justice Lucy Gitari in 2019 rejected a request by Ms Veronica Wanyaga Mugo seeking to declare Mr Pius Mukono Murage as a person presumed to be dead. She told the court that she reported his disappearance at Kianyaga Police Station on November 9, 2009 and since then, efforts to trace him have been fruitless.

But the judge declined the request saying Ms Wanyaga failed to meet the required threshold to prove that the missing person has not been heard or seen because she did not table an affidavit by relatives.

The judge said a letter from the area chief only states that the whereabouts of Mr Mugo was unknown. “As such the party seeking an order that the missing person be presumed dead must adduce sufficient evidence. The applicant has only shown that a report was made to the police and she advertised once in the local dailies,” she said.

Justice Gitari said Section 118A of the Evidence Act envisages that the missing person has not been seen, not by one person but “by those” who might be expected to have heard from him.

She pointed out that the Sections 386, 387 and 388 Criminal Procedure Code (CPC) makes provision as to the inquiry to be made in case of a missing person. In such a case, a magistrate conducts an inquiry and at the end of the inquiry, the court gives a report and the findings to the Attorney-General.

“After such an inquiry and the finding by the magistrate the court can then be moved to issue an order presuming the missing person is dead,” she said adding that there is an elaborate procedure to be followed under the CPC for declaring a missing person as dead.

She said after making the report to the police, it was upon the police to investigate and if they come to the conclusion that the person is missing, open an inquiry file and place it before a magistrate to conduct an inquest.

Some petitioners have been successful though.

Last year, justice Cecilia Githua allowed the prayer by Ms Diana Amenya Opingo for her husband Herbert Taitus Andalo to be presumed dead and a death certificate issued. She moved to court in October 2019 saying the husband disappeared in 2006.

She said she married Mr Andalo on August 11, 2001 and were blessed with five children. Before his disappearance, he was working with Serena Hotel Nairobi in its Rooms Division.

Insurance claim

Ms Opingo told the court that on August 8, 2006, she received information from one of their neighbours- her husband’s colleague- that Mr Andalo had not reported on duty and his services were going to be terminated.

She reported the matter to their area chief in Kibera and to Kilimani Police Station and argued in court that since then, she has extensively searched for her husband and contacted all their friends and relatives, both in Nairobi and in their rural home in Kakamega County, without success.

She further told the court that nobody had seen or heard from him since August 2006 and his services with Serena Hotel were terminated on August 26, 2006 when he failed to report on duty without permission.

Ms Opingo told the court that she made numerous inquiries to the Officer Commanding Police Division (OCPD) Kilimani regarding the status of her missing husband.

She pleaded with the court to allow the application to facilitate payment of a Group Life Insurance claim lodged with Serena Hotel to assist her with the upkeep of her family.

The judge allowed the application saying the couple’s three children, who were then adults, are among people who are expected to see or hear from their father but had confirmed that they have not since he disappeared.

Credible and reliable

“I have confirmed from annexures to the affidavits filed by the applicant that she also reported his disappearance to the chief of the area in which they resided in Kibera and the chief in charge of their rural home in Shirombe location, Khwisero Sub-county,” she said. The judge said Ms Opingo had demonstrated by credible and reliable evidence that her husband disappeared in August 2006 and had not kept in touch with his close family members. “If the subject was alive, it is expected that he would have attempted to contact at least members of his nuclear family, which he has not done to date,” she said.

A similar prayer was granted by justice Reuben Nyakundi in Kajiado to Mr Robert Muturi Machaga, the father of Danson Machaga Muturi, whom he presumed dead.

Mr Muturi said his son had been missing for more than seven years and that he made contacts to the necessary law enforcement agencies and local administration. Other family members including his mother, Ms Grace Muthoni Muturi, his brother Mr Thomas Muregi and sister Ms Mercy Wanjira, confirmed the claims in an affidavit.

“The applicants have demonstrated that Mr Danson Machaga Muturi has been missing from their home and usual residence for more than seven years. His absence has been continuous and inexplicable. He has not communicated with any of the family members, friends or relatives,” the judge said.

In November 2019, a Baringo woman was granted the wish for her husband to presumed dead after the his disappearance seven years before.

High Court judge Edward Muriithi allowed the prayer by Ms Volfrida Wanjala Mwandawa for her husband Daniel Aengwo to be presumed dead and the Registrar of Deaths to issue her with a certificate confirming his death.

The mother of nine, told the court that she last spoke to her husband on June 12, 2012, when he had called and informed her that he had taken a loan. It is alleged that he then sent her Sh30,000 for children’s school fees.

Preponderance of evidence

Her husband, an Administration Police officer, had just been transferred to Kisumu. Three days later, she told the court that she received a call from his cousin Mr Job Barkachai, also a police officer working at Kisumu Airport, saying her husband had not reported for duty and could not be traced.

“I immediately called on his mobile phone, but the phone was off, or could not be reached and we made arrangements with his brother Mr Walter Aengwo to travel to Kisumu and trace his whereabouts,” she told the court.

At his home in Kisumu, they found the house unlocked. They also found his Identity Card and ATM cards and upon inquiring from his colleagues, no one reported seeing him leaving the house.

“We kept inquiring as to his whereabouts and received several leads which we followed to no avail.

“My brother in law went to several places following such leads to no avail,” she said adding that they later reported his disappearance at Kisumu Police Station.

The family also placed an advertisement in the newspaper, seeking for information of his whereabouts.

“I have also engaged the local administration and the law enforcement officers to assist me in tracing my husband and their efforts have not bored any fruitful information,” she said.

After hearing the application, Justice Muriithi said, “I consider that the applicant has on a preponderance of evidence demonstrated that the subject is probably dead and the court may therefore presume that to be the case, and proceed to issue the order for presumption of his death as prayed.”