Has a loved one been missing for seven years? It might be time to consider what the law can do and how it can help bring closure.
In Kenya, if someone has not been heard from for seven years, the courts can step in to declare them legally dead, bringing closure and allowing families to move forward.
This principle is anchored in Section 118A of the Evidence Act, which deals with the presumption of death and allows courts to make such a declaration where a person has not been heard from for at least seven years.
“Where it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, there is a rebuttable presumption that he is dead,” the law states.
“It is hereby declared that Mr Karanja, who was last seen on January 15, 2008, is presumed dead for all intents and purposes of the law,” the court stated in a ruling delivered on December 18.
The court further directed the Principal Registrar of Births and Deaths to issue a death certificate in respect of Karanja.
A critical question before the court was the date of death to be reflected in the certificate. The court held that the most appropriate date would be December 18, 2025, the day the ruling was delivered and the legal declaration of death made.
The court explained that fixing the date as January 15, 2008, would amount to presuming that Karanja died on the day he disappeared, a conclusion contradicted by a phone call he made three days later and police reports indicating that he was “moving around”.
Equally, setting the date at the end of the seven-year period was described as arbitrary.
“Until this court speaks, the subject is presumed alive. It is this ruling that rebuts the presumption of life. Therefore, for the purposes of the Death Certificate, the date of death shall be deemed to be the date of this ruling, or alternatively, the Registrar may exercise administrative discretion to record it as ‘Unknown’ or ‘Presumed as of’,” the court said.
The application was filed by Karanja’s wife, Ms Mary Gathoni, who moved to court in November last year seeking orders declaring her husband dead and for the issuance of a death certificate.
Ms Gathoni told the court that she and Karanja married in 1989 and were blessed with two children. The family lived at Buru Buru Farmers in Ruai, Nairobi County, where Karanja was the breadwinner, working as a secretary with a predictable routine that saw him report to work mainly on Wednesdays and Saturdays.
She said she last saw him on January 15, 2008, a working day, when he left home to collect a vehicle from a friend. He never returned that evening. After waiting for two days, she began making inquiries, including visiting his workplace and informing the company’s management that he had gone to Umoja and failed to return.
On the third day, Karanja called her from a private number, saying he was coming home and wanted to speak to his daughter. Although the call confirmed he was alive at the time, it was the last known contact. He never returned.
Ms Gathoni reported the disappearance to Ruai Police Station, engaged the Criminal Investigations Department in Kayole with the help of her family, and informed Karanja’s eight siblings. She also reported the matter to the local chief and searched hospitals and mortuaries.
Despite early information from investigators suggesting that Karanja was “moving around”, police were unable to trace him or establish contact, and his phone eventually went dead.
In declaring him presumed dead, the court found that the threshold under Section 119 of the Evidence Act had been met. The court noted that because the application was unopposed, the court had a duty to independently test the evidence.
“In this application, with no objector, the Court serves as the guardian of the standard, ensuring the applicant’s evidence is sufficient to trigger the presumption,” the court said.
“This is more than double the statutory requirement. The temporal threshold is satisfied beyond any doubt,” the court said.
Addressing prolonged silence, the court examined who would naturally have heard from him if he were alive. It identified his wife and children as the primary category, noting that they lived with him and depended on him financially.
While acknowledging that Karanja had eight siblings, the court noted that they were informed of the disappearance early on but took no steps to challenge the application, did not appear in court to object and failed to respond to a newspaper advertisement.
“The Court must infer that their estrangement from the applicant does not equate to knowledge of the Subject’s whereabouts. If the siblings knew he was alive, they would likely have acted,” the court said.
On whether sufficient efforts had been made to trace him, the court was unequivocal.
“On the due inquiry test, the question is whether the applicant looked hard enough. The answer is a resounding yes!” the court said.
For more than 16 years, Karanja neither returned to his matrimonial home nor contacted his wife or children, nor managed his three properties, prompting the court to conclude that he had been absent despite reasonable efforts to locate him and to formally declare him presumed dead.
