Family members are usually in contact with each other at all times. This is usually the right of family members. The constitution protects this right from the preamble where we have committed ourselves to nurture the individual, the family, the society and the family.
Article 45 provides that the family is the fundamental unit that calls for protection. It is the fountain of social order. Family members usually coexist and depend on each other at all times. It is no wonder family members grieve so much whenever one of the family members goes missing without leaving a clue of whether they are alive or not .
However in law we cannot just assume that the person who cannot be traced is dead. The disappearance of someone can affect the lives of the people who have been left behind like a spouse or a partner. As a spouse you cannot just decide that you will marry another person since your spouse is missing. You need to take another step of asking the court to declare that your spouse is dead for purposes of moving on with your life.
This kind of order will help pave way for many things. The danger of getting married to another person on the ground that your spouse has gone missing is that your long lost partner might just surface one day.
Such a person will be deemed to have committed the offence of bigamy. The court does not easily “kill” the missing person unless you fully convince the Judge that the person is most likely dead. The court does not expect you to prove that the person is dead since you will most likely not have some facts like cause of death, place of death or whether the person you are saying is dead is actually dead. You only need to raise the presumption and give reasons why you believe that the person who is missing is in deed dead.
Under Section 16 of The Marriage Act, any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved.
The court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of the marriage.
In any such proceedings the fact that for a period of seven years or upwards the other party to the marriage has been continually absent from the petitioner, and that the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.
The court can dissolve the marriage if you can meet these standards. Section 118 of The Evidence Act Cap 80 provides that “where 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 rebuttal presumption that he is dead”.
In The High Court Of Kenya At Mombasa Misc. Application 525 Of 2005 (Os) in the matter of Clement Gitahi Wanjohi and Nicholas Mburu Wanjohi (presumed deceased), the court made an order declaring one Wanjohi as dead as a result of an application made to the court by his brother based on the provision of Section 118 A Evidence Act. The applicant was an adult brother of the deceased.
The applicant exhibited the birth certificate of his brother to the court and told the court that the said brother sat for Certificate of Primary education in 1990 and there after he went to Mombasa. The applicant told the court that inquiries had been made. He said that the brother was last seen on 27/01/1998 and that a report was made to the police of his disappearance on 10/02/1998.
Also a missing person advertisement was published in a newspaper. It was sworn that the father was dead but that the mother was still alive. It was also sworn that since 1998 the said brother Wanjohi had not made any contact with his brother and mother for all this time. The applicant also told the court that Wanjohi had not been heard of by the family. The last time he is reported to have been heard of or seen was 10/02/1998. The judge was satisfied that seven years had lapsed since Wanjohi’s disappearance.
The learned judge made a finding that the applicant had no burden to prove the death but to raise a rebuttable presumption. Since there was no one that is asserting to the contrary the court allowed the application presuming Wanjohi dead.
The constitution has a provision for habeas corpus which simply translates to an order compelling the person who has taken another person into their custody and is not producing them to bring them dead or alive.