By Justus Jeffery Olaka
There is no law providing for what would happen in a situation where a person who disappears for more than seven years without communicating with friends or relatives is presumed dead, and only reappears after such presumption. The ordinary rule is that after the death of a person, his/her property is distributed either in accordance to the law governing testate or intestate – having left a will or not. Does this rule apply to cases of presumption of death too?
Supposing the answer to that question is in the affirmative, does it mean that in a situation where the person had been presumed dead and reappeared that he will have no property at all? Is there any provision under Kenyan laws upon which the court would rely on while giving the order and the grounds for revoking the same? And can such a person approach the court seeking revocation of a presumption of death declaration, considering that it is indeed a rebuttable presumption?
The Evidence Act provides that where it is proved that those who might be expected to have heard of him if he were alive have not heard of a person for more than seven years, there shall be a rebuttable presumption that he is dead. The people likely to have heard from such a person are that person’s immediate family and friends. Any person, probably among those who ought to have heard from the person presumed dead, makes an application to the court for an order presuming the missing person dead as provided for under the Probate and Administration Rules. The application should be supported by an affidavit setting out the grounds for the application. These grounds include, inter alia: the person must have been continually absent from the petitioner(s) for at least seven years; the petitioner(s) must have no reason to believe that the other party has been living within that time; there are people who would likely to have heard from that person in that period but who haven’t; all due enquiries have been made as appropriate in the circumstances to no avail.
Where the court does not find the abovementioned grounds, it will disallow the application until they are met, as the court is not always in a hurry to “kill”. The court, while disallowing an application for declaring a person dead, in “Re Monica Malpeli”  stated that the application did not meet the threshold required before declaring a presumption of death. This was also the holding in “Re Application for Presumption of Death of Julius Mutui Kimweli”  where the court added that the applicant was at liberty to file a proper application that was in compliance with all the factual requirements envisaged under the provisions of Section 118A of the Evidence Act.
In the case of “Chard vs. Chard”, parties to a marriage celebrated in 1933 sought decrees of nullity on the grounds that the husband had been through a marriage ceremony in 1909. The first wife in respect of whom there was no evidence of ill health or registration of death was last heard of in 1917 and would be aged 44 in 1933. There were reasons that might have led her not to wish to be heard of by her husband or his family in that, between 1917 and 1933, the husband was continually in prison. The question was whether one could presume that she was dead and therefore hold this marriage of 1933 valid. The court held that there was no evidence of a person who would have been likely to have heard of the first wife between 1917 and 1933 and consequently the presumption of death was inapplicable in which case the nullity would not go through; they would have to bring in more evidence.
The case of “Prudential Assurance vs. Edmonds” was an action based on life insurance. The issue was whether the defendant was dead or alive. The defence submitted that the defendant was not dead. The family gave evidence of not having heard from the man for more than 7 years. However, his niece had written to her mother from Australia stating she had seen him in the street in Melbourne but that he got lost in the crowd before she could speak to him. The court here held that the presumption of death could not hold in the light of this evidence by the niece.
In the matter of “Clement Gitahi Wanjohi and Nicholas Mburu Wanjohi” (presumed dead), the high court at Mombasa made an order declaring one Wanjohi dead as a result of an application made to the court by his brother based on the provision of Section 118A Evidence Act. The applicant was an adult brother of the deceased, thereby being a person who ought to have heard from the younger brother.
England, unlike Kenya, has enacted a statute specifically governing matters to do with presumption death – the Presumption of Death Act. This Act allows an application to be made to the High Court for a declaration that a missing person, who is thought to have died or who has not been known to be alive for at least seven years, to be presumed dead.
Under this Act, anyone may apply to the court for a declaration of presumption of death, but if the applicant is not the spouse, civil partner, parent, child or sibling of the missing person, the courts will refuse to hear the application unless the applicant shows that he has sufficient interest in the determination of the application. Upon the court being satisfied that the missing person is either dead or has not been known to be alive for seven years, it may make a declaration of presumed death, stating when the missing person was deemed to have died, a declaration that might have relevance for other matters such as property interests.
The Act states that once this declaration of presumption of death is no longer subject of an appeal, it is conclusive evidence for the presumed death and it is hence effective for all purposes and against all persons. The effect of it being that the missing person’s property passes to others and his or her marriage/civil partnership is terminated.
The Act also provides that when making a declaration, the court may determine any question which relates to an interest in property and arises as a result of the declaration; and may determine the missing person’s domicile at the time of his or her presumed death. The court also has power to make any order it considers reasonable in relation to any interest in property acquired as a result of the declaration, and to direct that the value of any asset acquired as a result of the declaration may not be recovered under an order made by the court when varying or revoking a declaration.
The Act also makes provision for varying and revoking a declaration of presumed death where the missing person returns, still alive; or where there is clear evidence of the missing person having been alive at a time later than that declared as the time of death in the original declaration.
Like England, Scotland has enacted legislations to govern presumption of death, The Presumption of Death (Scotland) Act and A Report by the Scottish Law Commission. The Act provides that, where a person who is missing is thought to have died or has not been known to be alive for a period of at least seven years, any person having an interest may seek from the court a declaration of death of the missing person. If the missing person is thought to have died, an action can be brought immediately, without having to wait for seven years. However, if the ground for the declaration is that no one has heard of the missing person for seven years, it is necessary to wait for that period to elapse before bringing an action.
The Act provides that the missing person must have been domiciled in Scotland on the date when he was last known to have been alive or habitually resident there for the preceding year. Alternatively, the application may be made in Scotland if the applicant is the spouse and is domiciled in Scotland at the date the application or was habitually resident in Scotland for the preceding year. The Act also provides that the effect of a decree is conclusive for all purposes, including the dissolution of the missing person’s marriage, and any question of rights to property. Criminal liability of a missing person or any other person is not excluded by reason of a decree of presumption of death.
If it transpires that the missing person is, in fact, alive, it is the provision of the Act that a variation order be sought from the court. This variation order does not, by itself, affect property rights acquired as a result of the original presumption of death. However, where a court makes a variation order within five years of the presumption of death, it is required to make such further order about property rights as it considers fair and reasonable in all the circumstances of the case.
Having looked at other jurisdictions that have enacted statutes dealing specifically with this matter of presumption of death, it is my reasoned opinion that it is time Kenya borrowed the same idea and enact its own legislation to govern presumption of death in Kenya. The act should provide exhaustively and adequately after how long should an application for declaration of death be done, by whom, the requirements for the application, effects of the order declaring someone dead and remedies for the person who had been presumed dead when he in fact is alive. With respect to a person who appears after s/he had been presumed dead, such a person must produce compelling reasons for his/her disappearance and lack of communication, show that indeed he is the same person against whom the declaration was made.