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How a missing person is declared legally dead in Kenya

Kenya has a history of people and foreigners living in Kenya going missing.

Some have gone missing as a result of public abductions, some have left home for greener pastures without informing their family only to resurface decades later, while others have simply gone somewhere and never been seen again.

Based on previous media reports, some of the most prominent abductions in Kenya include the abduction of an Ethiopian businessman in November 2021, the disappearance of a Kenya Defence Forces officer in June 2021, the disappearance of a beloved musician and the disappearance of a ‘heroic’ businessman who rose to fame during a tragic terrorist attack in Nairobi in March 2020.

While most of them have been missing for a number of years and their whereabouts are still unknown despite ongoing investigations, there are many more Kenyans who go missing and whose relatives do not know where to start looking for them.

After a certain number of years, if necessary for one reason or another, the immediate families of these missing persons can legally apply to have them declared dead.

According to the Evidence Act, Section 118A on the presumption of death, “If 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”.

In a December 2022 ruling by Bomet High Court judge Lagat Korir, a man was presumed dead after his family applied to the court in June 2022 to have him declared dead.

The court later ordered the Registrar of Births and Deaths to issue a death certificate for the missing person (then presumed dead).

“That in consequence of the grant of the above prayers, this Honourable Court be pleased to make such further directions and orders as may be necessary to give effect to the foregoing orders and/or in the furtherance of the cause of justice,” Justice Korir said.

This decision was aided by the fact that one of the applicants swore an affidavit on behalf of the other applicants that the missing person was their relative and “disappeared without trace in 1975” and the relatives appeared before the magistrate for examination by the court.

The family revealed that the missing person was about 100 years old, had never married, had no children and had not quarrelled with anyone at the time of his disappearance, but it was suspected that he had mental problems at the time of his disappearance.

The applicants also provided evidence that they had tried to find their missing relative and a letter from the local chief confirming that the person had disappeared from a particular location in 1975.

“It is a requirement for such an application to be granted that the person in question should not have been heard of for a period of seven years by those who might be expected to have heard of him if he were alive. On the information now before the Court, the applicants, who were close relatives of the missing person, have not heard from him for a period of 47 years. It is my finding that the applicants have satisfied this court as to the requirements of the law by the evidence presented herein,” Justice Korir added in his ruling.

He added: “In my view, the declaration of the presumed death of the missing person herein by this court means that he is dead by operation of law and that the said death must be registered by the Registrar as required by law.

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