The High Court has declared a long-missing Directorate of Criminal Investigations (DCI) officer dead, providing legal closure to his family after more than a decade of uncertainty.
The court ruled that Police Constable James M’Athiru, who disappeared in 2014 while serving in Nairobi, is presumed dead under the law after being unheard from for over 11 years.
His wife, Susan Nyoroka, and their daughter filed the application, informing the court that they had exhausted all efforts to locate him. They sought a declaration of death to facilitate succession and access to benefits.
M’Athiru went missing between September and October 2014 after leaving his Kilimani residence for duty and failing to return. Despite extensive searches, no trace of him was found.
Granting the family’s request, the court ruled that the absence of a formal magistrate’s inquest did not prevent the declaration. It noted that while the State had not initiated an inquest, the family should not suffer due to institutional inaction.
“The duties under the Criminal Procedure Code belong to the State apparatus,” the court stated. “A private citizen should not be prejudiced or denied relief due to the dereliction of statutory duty by state organs.”
The Directorate of Criminal Investigations (DCI) Headquarters along Kiambu Road.
Photo credit: File | Nation Media Group
M’Athiru was stationed at the DCI headquarters, specifically in the Radio Room in Nairobi County. He vanished while on duty and was last seen by a colleague at the DCI Kiambu road headquarters. His last communication was days later.
When he failed to report to work in October 2014, internal police memos listed him as absent without leave. His mobile phone was switched off, and attempts to trace its signal were unsuccessful. Searches at his Kilimani residence also yielded no results.
A nationwide alert was issued by the National Police Service, with searches conducted in hospitals and mortuaries, all to no avail. A formal Wanted Persons Notice was later published in the Kenya Police Gazette on February 2, 2015.
The State subsequently filed criminal charges against M’Athiru at the Chief Magistrate’s Court in Kiambu, accusing him of desertion from the National Police Service. The case was mentioned repeatedly between May 2019 and July 2020, with multiple arrest warrants issued and extended. However, investigators failed to locate him, leading to the case’s withdrawal in July 2020.
M’Athiru had served in the police service for 28 years, having enlisted in July 1986. His family also conducted their own search, checking hospitals, mortuary records, and reporting his disappearance to Muthaiga Police Station—all without success. They later published a missing person notice in a newspaper in May 2025, which also provided no leads.
Despite the prolonged and unexplained disappearance, the State did not initiate a magistrate’s inquest, as required in cases where a missing person is presumed dead.
Instead, police labelled him a deserter and later charged him in absentia. The case collapsed in July 2020 after authorities failed to trace him for over a year.
The court ruled that the State’s inaction should not disadvantage the family. “To adopt a rigid stance would mean punishing the applicants for the institutional failure of the police and the prosecution,” it stated.
While M’Athiru’s wife was not issued an Occurrence Book (OB) number at Muthaiga Police Station—a procedural oversight—the court found that the broader institutional response compensated for this lapse.
Justice Helene Namisi noted that M’Athiru had not been heard from by his wife, children, parents, siblings, or colleagues for over 11 years.
“The applicants have conclusively demonstrated that a broad network of persons who would be expected to hear from him have had no contact whatsoever,” she said.
Under section 118A of the Evidence Act, a person can be presumed dead if they have not been heard from for at least seven years by those expected to know their whereabouts.
Justice Namisi stated that the family had not only met this threshold but had also demonstrated extraordinary efforts to locate him.
M’Athiru’s disappearance left his family in prolonged legal and financial uncertainty, unable to access his benefits or begin succession proceedings. The court emphasised that a formal declaration of death was necessary to initiate these processes and prevent the estate from deteriorating.
“It is a fundamental prerequisite for the activation of succession laws and the administration of an estate,” Justice Namisi said. “The depth of the search efforts far exceeds the standard typically presented in such applications,” she added, referencing police alerts, public notices, and hospital searches.
The court dismissed the significance of the deserter label, stating that it did not disprove the presumption of death.
“He was not declared a deserter until November 2014, and the criminal case was not instituted until 2019. He did not disappear because he was charged; rather, he was charged because he disappeared,” the ruling clarified.
The court also noted that the State had ultimately abandoned efforts to prosecute M’Athiru after failing to locate him. “The inability of the investigative machinery of the State to trace him strongly reinforces the presumption that he is no longer alive,” it stated.
The court ordered the Registrar of Births and Deaths to issue a death certificate, enabling the family to regularize their affairs.
The declaration allows them to pursue succession, access benefits, and move forward after more than a decade without answers.
