Case ID:170146

In re Paul Kimita Gathoni [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Application 49 of 2020

Parties:

In re Paul Kimita Gathoni

Date Delivered:

12 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Paul Kimita Gathoni [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application allowed

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MISCELLANEOUS APPLICATION NO. 49 OF 2020

IN THE MATTER OF PRESUMPTION OF DEATH OF PAUL KIMITA GATHONI

JANE GATHONI KIMITA....................................APPLICANT

RULING

1. Before Court is the Summons dated

23

rd

October 2020

by which the Applicant

JANE GATHONI KIMITA 2019

seeks for orders:-

“1.THAT PAUL KIMITA GATHONI be and is hereby presumed dead because the Applicant as his biological mother has not heard from him for the last seven (7) years with effect from 12

th

November 2013.

2. THAT the Registrar of Death do issue a Certificate of Death in respect of the said PAUL KIMITA GATHONI.

3. THAT the monies held in the Co-operative Bank Account No. 011xxxxxxxxxxx Coop House Branch of PAUL KIMITA GATHONI be released forthwith to his mother – JANE GATHONI KIMITA; or in the alternative, the monies to be held by Co-operative Bank Coop House Branch pending the issuance of Letters of Administration of the estate of PAUL KIMITA GATHONI.

4. THAT Co-operative Bank, Coop House Branch be stopped from releasing to the Unclaimed Financial Assets Authority the monies held in Account No. 011xxxxxxxxxxx of PAUL KIMITA GATHONI as the money in that Account forms part of the Estate of PAUL KIMITA GAHTONI.

5. THAT the Cost of this application be in the cause.”

2. The Application was premised on the grounds on the face of the Summons as well as the Supporting Affidavits sworn by the Applicant.

3. The Applicant told the Court that her son

PAUL KIMITA GATHONI

went missing from the family home on

12

th

November 2013

. At the time the Subject was aged

28 years

. Todate the Applicant has not seen or heard from her son again.

4. The Applicant narrated the efforts she has made in the past

eight (8) years

. The matter was reported at

Huruma Police Station

vide

OB Number 13

of

14

th

November 2013

and to the Chief of

Chinga North West Location

which is their rural home. (See Annexture

‘JGK-1’

) letter dated

19

th

October 2020

. The Applicant states that she searched at various hospitals and mortuaries but was not able to trace her son.

5.

Section 118A

of the

Evidence Act Cap 80

,

Laws of Kenya

provides that:-

“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.”

6. The Applicant told the Court that the Subject was not married and had no child. That he disappeared from the home which they shared in

November 2013.

The Subject’s employer

Royal Media Services

have by their letter dated

3

rd

February 2021

confirmed that he has not been seen at his place of work since

12

th

November 2013

.

7. The Applicant being the mother of

Paul Kimita Gathoni

with whom he lived with, is the person who in the circumstances would have been expected to see or hear from the Subject on a daily basis.

8. I am satisfied from the statement of the Applicant, the Affidavits on record together with the annextures thereto that there is credible and reliable evidence that the Subject was last seen alive on

12

th

November 2013

. From that date the Subject vanished from the family home and from his place of work. He has been missing for the past

eight (8) years

. If the Subject was still alive it would be expected that he would have contacted the Applicant who is his mother or his employer.

9. I find that the threshold set in

Section 118A

of the

Evidence Act

has been met and I find that there exists a presumption that the Subject is dead.

10. I therefore find that it would serve the interests of justice to allow this application. Relying on the inherent powers of the Court under

Section 3A

of the

Civil Procedure Act

I allow this application in terms of prayers (1), (2), (3) and (4). No orders on costs.

Dated in Nairobi this 12

th

day of February, 2021.

…………………………....

MAUREEN A. ODERO

JUDGE