For over 54 years, the family of Musa Shivulu lived in a state of agonizing limbo.
For more than half a century, the family of Musa Shivulu lived in agonising limbo. He was a brother, a relative and a name on a land title, only present in law but absent in life.
That uncertainty finally ended on May 28, 2026, when the High Court in Vihiga declared Shivulu legally dead, more than 54 years after he was last seen in Bungoma.
In a landmark ruling, the court granted an application by Margaret Mwichina Mbaka, Shivulu’s sister, seeking a presumption of death under Section 118A of the Evidence Act.
The decision closes a decades-long chapter of silence and uncertainty and clears the way for the administration of a piece of land that has remained in legal limbo for decades.
According to court documents, Musa Shivulu, believed to have been born around 1929, was last seen alive on November 17, 1971, in Bungoma. The circumstances surrounding his disappearance remain unknown. There was no note, no farewell and no indication that he intended to leave. He simply vanished.
“The disappearance was total, unexplained, and inconsistent with continued life,” the court observed, citing the applicant’s affidavit. “There being no evidence of voluntary relocation, no intention to abandon family or residence, and no subsequent contact with relatives or community.”
The court heard how the family mounted an exhaustive search that stretched across generations.
“Notwithstanding long-standing and structured search efforts undertaken by the Applicant and the family over several decades, including inquiries among relatives and associates across Bungoma, Kakamega, and the surrounding regions, consultations with clan elders and community leadership in Mungavo Village, engagement with the local administration including the Chief of Shamakhokho Location, and reporting to Serem Police Station, no credible information, trace, or sighting has ever been established,” the court stated.
Every avenue was explored. Elders were consulted, police reports filed and inquiries conducted across villages and communities. Yet, the court noted, “the evidentiary record is completely silent”.
Over the intervening decades, there had been “no communication, witness, administrative record, or assertion of life”.
That prolonged silence, the court found, was itself compelling evidence.
The ruling was anchored on Section 118A of the Evidence Act, which provides that where a person has not been heard from for seven years by those who would ordinarily have heard from them if they were alive, a rebuttable presumption arises that the person is dead.
Shivulu had been missing for more than 50 years — far beyond the statutory threshold. The applicant argued, and the court agreed, that such a lengthy and unexplained absence strengthened the legal presumption.
The judge, however, emphasised that a presumption of death is never automatic. It remains rebuttable and can be overturned if evidence emerges showing the person is alive.
Quoting previous judicial decisions, the court stated: “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.”
The court found that the applicant had met that burden.
A key aspect of the ruling was its clarification of the legal process governing missing persons. While many people assume that a seven-year disappearance automatically results in a death certificate, the court noted that Section 118A of the Evidence Act must be read together with Sections 386, 387 and 388 of the Criminal Procedure Code.
These provisions, often associated with inquests into suspicious or unexplained deaths, also apply to missing persons believed to be dead.
Section 386(d) specifically covers cases where a person “is missing and believed to be dead”, requiring police investigations and reporting to a magistrate and, ultimately, the Director of Public Prosecutions.
The court underscored the importance of following the prescribed legal process.
“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed,” the judge said.
Beyond the tragedy of a life lost to mystery, the case had significant implications for property rights.
Shivulu was linked to land that has remained effectively frozen for decades. Without proof of death, succession proceedings could not begin. The property could neither be transferred nor fully administered.
The applicant argued that unless the court intervened, “the estate remains legally frozen and the property exposed to waste, encroachment, or mismanagement, while lawful succession and administration cannot proceed.”
The court agreed, noting that the inability to administer the estate made judicial intervention necessary to provide legal certainty and protect property rights.
As a result, the court not only declared Shivulu dead but also granted the applicant liberty to seek any further orders necessary for the preservation, protection and administration of the estate.
Having declared Shivulu legally dead, the court directed the Registrar of Births and Deaths in Vihiga County to register the death and issue a death certificate.
The order was based on Section 17 of the Births and Deaths Registration Act, which requires relatives and other persons to report deaths to the registrar.
In circumstances where there is no body, no witness and no known date of death, a court order becomes the legal basis for registration.
The judge was unequivocal: “That the Registrar of Births and Deaths of the Republic of Kenya is hereby ordered to issue a certificate of death in respect of the said Musa Shivulu whose better particulars shall be provided by the applicant.”
Before concluding the matter, the court observed that the application caused no prejudice to any known living person. There was no competing claimant, no dispute over inheritance and no indication that Shivulu was still alive.
The judge also reflected on the delicate nature of such decisions.
“Where a man disappears and is unheard of for a long period of time, he may or he may not be dead,” the ruling stated. “That fact must remain alive to the court exercising discretion and the presumption of death.”
In the end, however, the evidence was overwhelming.
“The application for presumption of death is hereby confirmed as one whose right to life under Article 26 of the Constitution is no longer tenable within the scope of the facts provided by the applicant,” the judge ruled.
For a family that had spent 55 years searching for answers, the decision may not explain what happened to Musa Shivulu. But it finally provides something they had long been denied: legal closure.
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