REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

SUCCESSION CAUSE NO. 3041 OF 2006

IN THE MATTER OF THE ESTATE OF RUIRU MUCHOHI GIKONYO

VERONICAH WANGUI KARARAHO…...........1^ST APPLICANT

CHARLES KARARAHO..................................…2^ND APPLICANT

VERSUS

BETTY WANGUI…...............................................1^ST RESPONDENT

MUCHOHI RUIRU GIKONYO..........................2^ND RESPONDENT

RULING

1.       The deceased Ruiru Muchohi Gikonyo died intestate on 16.8.06. The record shows that the deceased was survived by his wife Betty Wangui Gikonyo (the 1^st Respondent) and son Muchohi Ruiru Gikonyo (the 2^nd Respondent). A grant of letters of administration (the Grant) was on 13.2.07 issued to the Respondents and confirmed on 28.3.07. The estate of the deceased which is quite substantial, devolved to the Respondents in equal shares.

2.       The subject of this ruling are 2 Applications which have been filed by Veronicah Wangui Kiararaho (the 1^st Applicant) and her son Charles Kararaho (the 2^nd Applicant).

3.       The first Application is a Summons dated 8.3.18, in which the Applicants seek several orders including:

i)       Revocation of the Grant

ii)      Appointment of the Applicants as co-administrators of the estate to protect their interests as wife and son of the deceased.

iii)     Provision for the sustenance of the Applicants.

iv)     Preservation of the estate.

v)      Provision by the Respondents of accounts and current statements of 10 listed bank accounts.

vi)     Costs

4.       In her supporting affidavit sworn on 8.3.18, the 1^st Applicant averred that she was the wife of the deceased who she met in 1992. She claimed that they married under Kikuyu customary law in the same year and cohabited until the demise of the deceased. They were blessed with a child, the 2^nd Applicant on 1.4.95. 1^st Applicant further averred that the deceased took care of all her needs and those of the 2^nd Applicant, including school fees, subsistence and holidays. The deceased also provided shelter for them in Eastleigh Section 3 and maintained the same as his home. Upon his demise, the 1^st Applicant wrote severally to the Respondents seeking maintenance and their inclusion as beneficiaries of the estate. The request was however not heeded, prompting her to file Children’s Case No. 125 of 2007 seeking maintenance from the estate, for the 2^nd Applicant who was then a minor. The 1^st Applicant further averred that unknown to her, the Respondents fraudulently obtained the Grant by concealing material particulars from the Court and without involving the Applicants. She urged the Court to revoke the Grant and allow the other prayers sought.

5.       In her replying affidavit of 26.10.18, the 1^st Respondent denied that the 1^st Applicant is a widow or beneficiary of the estate of the deceased. She stated that she and the deceased bought and jointly owned properties and held bank accounts together, which properties and accounts are not available for distribution. That in any event the bank accounts were closed by the deceased in his lifetime. The 1^st Respondent averred that the Children’s Case filed by the 1^st Applicant was dismissed on 1.12.15 for want of prosecution. She further averred that there was no proof that the deceased had consented to his name being entered in the alleged birth certificate of Charles, which contains several unexplained discrepancies. She stated that the office of civil registration indicated that the register does not contain the name Charles or the father’s name. Additionally, the status of the child’s mother is indicated as single and there was an amendment to the register of the mother’s name from Veronica to Veronicah. To the 1^st Respondent, these discrepancies are confirmation that Applicants are dishonest parties, seeking to illegally benefit from the estate of the deceased and are liable to prosecution for presenting forged documents, purporting them to be official government documents. The 1^st Respondent also questioned the Applicants’ motive of filing the present Application 11 years after the Grant was issued, which issuance, the Applicants never challenged.  She urged that the Application be dismissed with costs. 

6.       In the second Application which is dated 27.8.19, the Applicants seek preservation orders over the estate, quite similar to those sought in the Application dated 8.3.18, pending the hearing and determination of that Application. They further seek that the 2^nd Applicant and the 2^nd Respondent do submit to a DNA test at the Government Chemist to determine the paternity of the 2^nd Applicant. The 1^st Applicant averred in her affidavit sworn on 27.8.19 that it was necessary to preserve the estate because in spite of the pendency of the suit herein, the Respondents were disposing of properties of the estate and selling the same to third parties. As a result, the estate will be wasted and the matter rendered nugatory and a waste of judicial time. She urged that the prayers sought be granted.

7.       The 1^st Respondent opposed the Application by her replying affidavit sworn on 17.9.19 and reiterated her earlier averments. She accused the Applicants of engaging in a fishing expedition to get evidence for their summons for revocation of grant. The 1^st Respondent further stated that Courts exercise restraint and caution when ordering a DNA test and that sufficient reason must be shown. Such test is an intrusion of a person’s rights to privacy and a person seeking such orders must show overriding rights to a test. She urged that the Application be dismissed with costs.

8.       In his replying affidavit sworn on 1.3.2020, the 2^nd Respondent reiterated the averments by his mother, the 1^st Respondent. He stated that the exhibited photographs lack probative value as it is not indicated when and by whom they were taken and printed. Further that the photographs offend the provisions of Section 78A as read with Sections 106A and 106B of the Evidence Act for want of a certificate confirming the source and authenticity of the same. According to the 2^nd Respondent, the fraudulent birth certificate and selective purported photographs cannot be deemed to be a prima facie case to warrant an order for DNA. He further contended that the Applicants have not demonstrated that they any overriding rights which would trump or limit his fundamental rights as guaranteed by the Constitution of Kenya. The 2^nd Respondent also urged that the Applications be dismissed with costs. 

9.       In a further affidavit sworn on 7.5.2020, the 1^st Applicant averred that between 1990 and 2006, she took several photographs with the deceased, his friends and siblings. That the exhibited photographs are overwhelming evidence of the nature of the relationship she had with the deceased and further that the deceased recognised, acknowledged and accepted the 2^nd Applicant as his own. 

10.     The Respondents’ case was also supported by the deceased’s mother Leah Wanja Muchohi aged 95, in her affidavit sworn on 23.2.21. She confirmed that the deceased was married to the 1^st Respondent and that the 2^nd Respondent was his only son who was named after her late husband, in accordance with tradition. She further stated that she does not know of any other marriage between the deceased and any other woman. Additionally, she averred that she gave her plot in Eastleigh to the deceased and his wife, the 1^st Respondent as a wedding present while her late husband also gifted them with a tea farm in Kanyenyaini, which she manages.

11.     At the hearing which was by way of viva voce evidence, parties gave vent to their respective averments. They thereafter filed their respective submissions which I have duly considered.

12.     The law relating to revocation of a grant is contained in Section 76 of the Law of Succession Act which provides in part:

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

13.     One of the grounds upon which the Respondents oppose the Applications is that the same have been brought in bad faith, 11 years after the grant was issued. Under the law, an application for revocation of a grant may be brought at any time by any interested party and as long as the statutory grounds are demonstrated, such grant may be revoked. The length of elapsed time between the date of grant and application for its revocation is immaterial. Further, a grant may be revoked whether such grant has been confirmed or not. In the present case, it is immaterial that the Application for revocation has been filed 11 years after the issuance of the grant or that the grant has been confirmed.

14.     Under the law, an application for revocation of grant is to be brought by an interested party. What this Court must therefore determine is whether the Applicants are interested parties as contemplated in Section 76 of the Act. To this end, the following issues must be settled at the onset:

i)       Whether the 1^st Applicant was a wife of the deceased.

ii)      Whether the 2^nd Applicant and 2^nd Respondent should submit to DNA test to determine the 2^nd Applicant’s paternity. 

15.     It is only after these 2 issues are determined by the Court, that it will be known whether the Applicants have the locus standi to seek the orders of revocation of the grant, provision for the Applicants, preservation of the estate and production of accounts by the Respondents.

Whether the 1^st Applicant was a wife of the deceased

16.     In her testimony in support of her claim that she was married to the deceased, the 1^st Applicant stated that met the deceased in 1991 at Uphill restaurant in Ngara where she used to go for lunch. At the time, she worked at Stima Plaza. They began a relationship which culminated in the birth of the 2^nd Respondent on 1.4.95. She lived in his house in Eastleigh known as Nancy Wanjiru House. On the claim that the deceased married her under Kikuyu customary law, the 1^st Applicant stated that the deceased went to her home and met her mother and paid a small token to say that he had a child with her. She however said that most witnesses had died.

17.     This was denied by the 1^st Respondent who stated that the deceased was a brutally honest man with whom she had a very loving relationship. The 1^st Respondent stated that she did not even know the Applicants and only got a clear view of them in Court, the day the hearing commenced.

18.     A party who seeks to propound customary law must call evidence to prove that customary law. In Sakina Sote Kaittany & another v Mary Wamaitha [1995] eKLR, Gicheru, J.A. (as he then was had this to say concerning proof of customary law and practices:

“…the onus of proof to establish a particular customary law rests on the party who relies on that law in support of his case… As a matter of necessity the customary law must accurately and definitely established.  The court has a wide discretion as to how this should be done but the onus to do so must be on the party who puts forward the customary law.  This might be done by reference to a book or document of reference and would include a judicial decision but in view, especially, of the present apparent lack in Kenya of authoritative text books on the subject, or of any relevant case law, this would in practice, usually mean that the party propounding the customary law would have to call evidence to prove that customary law, as he would prove the relevant facts of his case.”

19.     Other than stating that the deceased married her under Kikuyu customary law, the 1^st Applicant did not bring in an expert in Kikuyu customary law to support her claim that a customary marriage took place between her and the deceased. The Court takes judicial notice of the fact that customary marriages are not held in secret. They are conducted publicly in the presence of many witnesses from both parties’ sides. This being the case, one would have expected the 1^st Applicant to call some of the witnesses who were present at the alleged ceremony, to confirm that the same did in fact take place. This she did not do. The only conclusion that can be arrived at is that no such ceremony took place.

20.     It is a well settled principle of the law of evidence that he who alleges must prove. Section 107 of the Evidence Act stipulates:

(1)     Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2)     When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

21.     The 1^st Applicant was obligated to place before this Court, cogent evidence, that the alleged customary marriage took place. Without providing any proof therefore, my finding is that no customary marriage took place between the deceased and 1^st Applicant.

22.     In the case of M W K v A M W [2017] eKLR, Joel Ngugi, J. was of a similar view. He stated:

30. In this case, the only proof that the Plaintiff has offered to demonstrate the alleged existence of a Kikuyu Customary Marriage are pictures which she admits were taken when the parents of the Respondents and a few other guests visited her after she had given birth to her child in 2000. There is no evidence of any negotiations by the family; no evidence of bride price negotiations; and no demonstration of any other customary formalities. Indeed, as I will demonstrate shortly, even evidence of cohabitation was quite sparse and did not rise to the required threshold. The only other evidence that Plaintiff offered was payment by the Respondent of Kshs. 30,000/= to her father shortly before they got married before a Registrar in 2006. She, however, does not claim that this was done in the setting of any formal traditional rites or as part payment of previously negotiated bride price.

31. In the circumstances, I am constrained to conclude that the Plaintiff did not demonstrate the existence of a Kikuyu Customary marriage.

23.     Further, capacity is one of the essentials of a Kikuyu customary marriage. The essentials are set out in Eugene Cotran’s “Casebook on Kenya Customary Law” at page 30 as quoted by the Court of Appeal in the case of Eva Naima Kaaka & another v Tabitha Waithera Mararo [2018] eKLR. The evidence on record shows that the marriage of the deceased and the 1^st Respondent was solemnized on 13.12.80 at the Lenana School Chapel. Accordingly, the deceased having contracted a Christian marriage had no capacity to contract any other marriage, while that marriage subsisted.

24.     The 1^st Applicant exhibited many pictures. They include pictures of the deceased, his sister Dr. Waithira, and his friends. She exhibited pictures of a trip to Mombasa with the deceased, his friends, Tob Cohen, Mararo, Newton Kamau, the late Joe. and the late Gabu. Other pictures were of a trip that the deceased had taken her to South Africa together with his friend Gichuhi. She also exhibited pictures of herself and the 2^nd Applicant at Lee Funeral home on the day of the deceased’s funeral. There are pictures of the deceased and the 1^st Applicant taken at what is referred to as Rajs Inn, in Mombasa holidaying, swimming at Whitesands Hotel, Mombasa, at Viewpoint along the Nairobi-Nakuru Highway and in Pretoria, South Africa. There are also pictures of the 1^st Applicant, the deceased and his sister Dr. Waithera, in what is said to be the house in Eastleigh. When shown pictures exhibited by the Applicant, she recognised her husband holding the 1^st Applicant in one picture. In another picture, she recognised the deceased and stated that the woman in the picture could be the 1^st Applicant.

25.     The Respondents have challenged the production of the photographs as they are not in the original form. They submitted that the photographs have been edited with superimposition of other pictures, and that the same have not been compared with the originals for verification.

26.     In response to the challenge, the 1^st Applicant relied on the case of In re Estate of Washington Olweny (Deceased) [2021] eKLR, where the learned Judge stated:

There is a reason why parties exchange documents and documentary evidence long before the hearing date. This is to enable them get time to respond to what has been shared, and where they are represented to seek legal counsel. These photographs were exchanged as long ago as 2018. The parties had all the time to scrutinize the photographs and raise any objections as to their contents or otherwise, if they had any at all. It is not demonstrated that there are allegations that the photographs are fake, or do not represent the persons they depict or that they have been altered in any way yet the petitioners.

27.     I have considered the cited authority and find that the same is not helpful to the 1^st Applicant in that the Respondents herein did raise objections to the photographs and stated that the same had been altered.

28.     Section 64 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. It is not clear to the Court why the 1^st Applicant did not produce the original photographs and chose to rely on copies. Where a party seeks to rely on secondary evidence, such evidence will be admissible under the conditions stipulated in Section 68 of the Evidence Act. Subsection (1) provides:

(1)     Secondary evidence may be given of the existence, condition or contents of a document in the following cases—

(a)     when the original is shown or appears to be in the possession or power of—

(i)      the person against whom the document is sought to be proved; or

(ii)     a person out of reach of, or not subject to, the process of the court; or

(iii)    any person legally bound to produce it,

and when, after the notice required by section 69 of this Act has been given, such person refuses or fails to produce it;

29.     It has not been demonstrated by the 1^st Applicant that the original photographs are in the possession or power of the Respondents, or that the same are with a person who is out of reach or not subject to the process of the Court. It has also not been shown that any person legally bound to produce the original photographs has after notice, refused to produce the same. Production of the original documents may have persuaded the Court in making a decision to admit the same. As things stand, the copies of the photographs do not assist the Applicants’ case as the same being secondary evidence, are inadmissible.

30.     The foregoing notwithstanding, the evidence shows that the 1^st Applicant knew the deceased very well. She knew the deceased’s siblings Gikonyo (DC), Kuria Gikonyo. and sister Dr. Waithera. She also knew his friends, the later Tob Cohen, the late Maina Kariuki, Newton Kamau, Mararo, Gabu, late Abdala, DK Kibira and others and referred to them by name. She testified that she lived in his property in Eastleigh which the deceased named Nancy Wanjiru House after his sister who had died of cancer soon after completion of construction of the same. She stated that the deceased took her on holidays and took care of her needs. She also knew the deceased’s motor vehicles. Her claim over the estate of the deceased as a wife and on behalf of her son began way back in 2007. This is evidenced by the letters dated 12.1.07 19.2.07 to the “executors” of the estate of the deceased by Bengi Miriti Advocates demanding recognition of both Applicants as wife and son of the deceased respectively.    

31.     The forgoing factors taken together lead this Court to conclude, on a balance of probabilities, that the deceased and the 1^st Applicant were lovers. There is however no evidence to suggest that the relationship between the deceased and the 1^st Applicant crystalized into a marriage. Accordingly, I find and hold that the 1^st Applicant was not a wife of the deceased as alleged. 

Whether the 2^nd Applicant and 2^nd Respondent should submit to DNA test to determine the 2^nd Applicant’s paternity

32.     The basis upon which the Applicants seek an order that a Deoxyribonucleic Acid (DNA) test be done on the 1^st Applicant and the 2nd Respondent is that the 1st Applicant had a longstanding relationship with the deceased which culminated in the birth of the 2nd Applicant. For the 2nd Applicant, the basis of his belief that the deceased was his biological father, is his birth certificate. It is this birth certificate that he used to obtain his national identity card and passport.  

33.     It was submitted that the Court has power to grant orders for DNA to enable parties determine issues of paternity or maternity where the same is contested. Further that there is the school of thought where a nexus must be established between the deceased person and the contender, before a DNA test can be ordered. The other school of thought states that DNA may be used as a fact finding mission, as it is the only scientific and concrete way of settling questions relating to paternity.

34.     The Respondents vehemently opposed the prayer for DNA and state that no nexus has been shown between the deceased and the 2^nd Applicant. Further, that the only evidence relied on was the exhibited birth certificate of the 2^nd Applicant which the Respondents stated was a forgery. This is because it contains several discrepancies including that the name indicated therein is Ruiri and not Ruiru. The register indicates the name of the 2nd Applicant as Kararaho son of Wangui but does have the name Charles. Further the register does not have the name of the father of the child. The status of the child’s mother is given as single. The only amendment to the register was on the mother’s name from Veronica to Veronicah. 

35.     In her testimony of Milkah Diana Oddo Nyiende, a Civil Registrar from the Civil Registration Department confirmed the contents of the register which is as stated by the Respondents. The register does not have the name of the 2nd Applicant’s father as none was given at the time of registration. She stated that in a letter addressed to the 2nd Applicant’s advocates, the department suggested that the Applicants altered the birth certificate which has the name of the deceased as the father but the register does not have the same. She further confirmed that the only amendment made to the register was the name of the 1st Applicant in 1995.

36.     The Court notes that the birth certificate relied upon by the Applicants does contain inexplicable discrepancies. Further, there are no pictures of the 2^nd Applicant with the deceased and it is clear that he did not know or have a relationship with the deceased as a father. Additionally, the testimony of the 1^st Applicant is that she received support from a friend, Maina Wandere, whose child was a school friend of the 2^nd Applicant. The 2^nd Applicant lived with Maina Wandere who supported and paid school fees for him and he still mentors him to date. It is this friend who paid the legal fees for her present lawyer after several previous lawyers ceased to act for her. It is clear therefore that the deceased did not participate in the life of the 2^nd Applicant or offer material or any other support. The question this Court has to ask is whether in view of the foregoing, this Court should still direct that the DNA test be done as sought by the Applicants.

37.     As indicated, the Court has found that there existed a relationship between the 1^st Applicant and the deceased and that on a balance of probabilities, they were lovers. It is common knowledge that lovers do engage in activities that often bring forth a child. This is the 1^st Applicant’s contention. The Applicants seek the DNA test so that the 2^nd Applicant could know with certainty that the deceased was his father and also benefit from his estate.

38.     It is noted that Courts have been divided on the issue of DNA testing. Some are of the view that an order for a DNA test will result in the violation of the right to an individual’s right to privacy. Other Courts hold the view that DNA should be used as a fact finding mission as it is the only scientific and concrete way of settling questions relating to paternity.

39.     It was submitted for the 2^nd Respondent that seeking DNA test on flimsy grounds will cause him mental stress and anguish and further infringe on his rights of bodily security, integrity and rights to privacy. Reliance was placed on the case of S.W.M v G.M.K [2012] eKLR, where Majanja, J. stated:  

Ordering the respondent to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which rights are protected under the Bill of Rights. The petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.

40.     It is noted that what was before Majanja, J. was a constitutional petition anchored on the alleged violation of rights. In such a matter, a claimant must set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed (see Anarita Karimi Njeru v Republic [1979] eKLR). In the S.W.M v G.M.K case, the prayer for DNA was declined because the petitioner therein was unable to demonstrate the rights that she claimed had been violated. Indeed, the learned Judge posed:

 But in light of the sentiments in Trusted Society of Human Rights Alliance v Attorney General and Others (Supra), I think the question then is what other violation of the petitioner’s rights under the Bill of Rights is disclosed for which this court can give relief to the petitioner under the provisions of Article 23 and which the respondent can reasonably said to have had notice. I am afraid that apart from reciting the facts, the petitioner’s case, in so far as the enforcement of the Bill of Rights is concerned, is really unclear but what is clear is that the petitioner is aggrieved by the fact that she does not know her father and believes that the respondent is her father. What article or articles in the Bill of Rights must this court address itself to in order to vindicate the petitioner’s rights?

41.     I am in agreement with Majanja, J. that a party seeking DNA test must demonstrate a nexus as well as a specified quest to protect or enforce specific rights. In the present case, it has been demonstrated that a relationship did exist between the 1^st Applicant and the deceased. The 1^st Applicant is not a total stranger who has emerged from nowhere and decided to claim that the deceased is the biological father of her son. 

42.     Also relied upon by the 2^nd Respondent is the case of D N M v J K [2016] eKLR where Onguto, J stated:

Much more recently in R.K vs. J.K & Another [2016]eKLR, the court held that

“[77]... a DNA test will not be ordered unless there are clear circumstances that justify the making of such an order.  It calls for a balance to be made in the circumstances of each case between the needs of a child and the emphasis is on “child”, and the rights of the alleged father to privacy, bodily security and integrity. If the facts and circumstances of the case lead the court to believe that a prima facie case has been made out that the alleged father of the child in respect of whom orders of DNA are sought, as was the case in MW vs KC [2005]eKLR relied on by the petitioner, where the mother of the child and the alleged father had been cohabiting, then the constitutional imperative in Article 53 demand that the best interests of the child should be the paramount consideration, and would override the right to privacy of the putative father”

[78] Taking the above factors into consideration in the present case, I am constrained to find that a case has not been made out by the petitioner that would justify the grant of the orders that she seeks. As noted before, she is an adult of 35, so the constitutional dictates of Article 53 do not apply with respect to her. Secondly, she has not , on a prima facie basis established any biological relations with the 1^st respondent to warrant the grant of the orders for DNA testing that she seeks against him.”(emphasis added)

43.     The learned Judge went on to say:

In conclusion, I hold the view that where paternity is in dispute then within reasonable limits and in appropriate cases DNA testing of non-consenting adults may be ordered even at an interlocutory stage.  The bid to establish the truth through scientific proof must however not be generalized and should never so lightly prevail over the right to bodily integrity and right to privacy until it is clear that such rights ought to be limited. The clarity is only established where an undoubted nexus is shown as well as a specified quest to protect or enforce specific rights. Untested and controverted affidavit evidence, may not suffice.

44.     Having carefully considered that case, I note that Onguto, J. was of the view that DNA of non-consenting adults may be ordered within reasonable limits and in appropriate cases. The rider however is that the bid to establish scientific truth through DNA should not be generalized and should never lightly prevail over the right to bodily integrity and right to privacy until it is clear that such rights ought to be limited.

45.     Munyao, J. of the Environment and Land Court had occasion to consider this very contentious issue of DNA in Benjamin Kibiwot Chesulut v Mary Chelangat & another [2015] eKLR. The learned Judge stated: 

I interpret this test to mean that, DNA ought only to be permitted where it is necessary for the determination of the issue before court. Where it is not going to determine a key issue in the case, then DNA ought to be denied. This is because DNA is seen as an intrusive procedure that has the effect of invading one's right to privacy.

46.     I agree with Munyao, J. that DNA should be permitted where it is necessary to determine an issue before the Court. Recognising the intrusive nature of a DNA test, the same should be denied where it would not determine a key issue in a matter. In the present case, the paternity of the 2^nd Applicant is central to this case as it will determine whether he is a son of the deceased and by extension a beneficiary of his estate.

47.     In the case of In re Estate of JKM (Deceased) [2020] eKLR Achode, J. stated:

As a general rule, the more correct approach is that the discovery of the truth should prevail over the idea that the rights to privacy and bodily integrity should be respected. Whereas the DNA test would infringe upon the privacy of the Appellants and their siblings, it is evident that DNA testing would be the most accurate method to arrive at a just and fair decision in a case such as this one where the evidence adduced by the parties is inconclusive. This is because it would ensure that if the Respondents were indeed children of the deceased as alleged, they would benefit from his estate. As such, I find that directing the parties to submit to DNA testing was the only option available to the trial court in order to arrive at a fair and just determination having found that the evidence adduced thereto was insufficient for the court to make a determination one way or the other.

48.     The deceased is not available for the test on account of his demise. Whereas the DNA test would infringe upon the privacy of the 2^nd Respondent, the acknowledged son of the deceased, the test will conclusively establish whether he and 2^nd Applicant share a common paternity.  Given that the national identity card of the 2^nd Applicant is insufficient to prove that he is a child of the deceased, I agree with Achode, J. that the DNA test to establish the paternity of the 2^nd Applicant, which is central to the dispute herein, is the only option available to the Court in order to arrive at a fair and just determination.

49.     Similarly, in the case of In re Estate of SKC (Deceased [2019] eKLR, while considering a similar issue, Githinji, J. stated:

DNA is intrusive and interferes with the right to privacy. However, paternity is central to the dispute at hand, and DNA is justifiable in determining the truth on whether the applicant is a child and dependent of the deceased and therefore beneficiary of deceased’s estate.  It is the only way to resolve the paternity issue.

50.     Lenaola, J (as he then was) considered the competing rights in an application for a DNA test in the case of P K M v Senior Principal Magistrate Children's Court at Nairobi & another [2014] eKLR, Lenaola, J and had this to say:

I agree and while I would be averse to classifying rights in order of priority, there is no doubt in my mind that between the Petitioner's inconvenience at being subjected to DNA testing and the need to conclusively determine the paternity of the child, in the child's interest and certainly in the Petitioner's interest, the child's interest must prevail. For the Petitioner, it would be a minor inconvenience if he attends to DNA testing once but for a child not to know its parents and benefit from their protection and care, the damage may linger for years to come.

51.     It is noted that in each of the above 2 cited cases, the applicant for the DNA test was a minor, and the learned Judges found in their favour. In the present case, the 1^st Applicant is an adult. This however does not take away his right to know whether he is a child of the deceased and therefore a beneficiary of his estate.

52.     The 2^nd Respondent contended that the DNA test would cause him mental stress and anguish and further infringe on his rights of bodily security, integrity and rights to privacy. The Court considers that there may also be apprehension on the part of the Respondents that a positive test would expose the deceased’s double life that they were not aware of, noting that the 1^st Respondent repeatedly stated that her husband was a brutally honest and loving man who she trusted fully.

53.     The Court notes that the 2^nd Respondent is entitled to have his right to privacy as guaranteed under Article 31 of the Constitution of Kenya, 2010, protected by this Court. His right to autonomy and protection of his bodily integrity must also be protected. The aforesaid is rights are however, not absolute. These right can be overridden in certain circumstances, for example, the right to know one’s paternity. There must always be a balance between the right of a non-consenting person not to submit himself to medical examination and the right of another person to know his heritage through a medical examination.

54.     In the present case, having considered the facts and the law and the cited authorities, I am persuaded that the 2^nd Applicant’s right to know biological truth far outweighs the 2^nd Respondent’s right to privacy, autonomy and protection of his bodily integrity. This truth is important for the 2^nd Applicant not just so that he may benefit from the estate of the deceased but also that he gets to know his true heritage. The paternity test will confirm his heritage once and for all so that the need to know will be forever settled. As Lenaola, J stated in P K M v Senior Principal Magistrate Children's Court at Nairobi & another case (supra), for the 2^nd Respondent, it would be a minor inconvenience for him to subject himself to DNA testing once, but for the 2^nd Applicant to not know his father and benefit from his estate, the damage may linger for the rest of his life. Additionally, given that the 2^nd Applicant’s paternity is central to the dispute herein, the DNA test will be the most accurate method to establish the truth required, to arrive at a just conclusion.

55.     In the end, I find and hold that the Application dated 27.8.19 partially succeeds and I make the following orders and declaration:

i)          The 1^st Applicant Veronicah Wangui Kararaho is not a wife of the deceased Ruiru Muchohi Gikonyo.

ii)         The 2^nd Applicant Charles Ruiru Kararaho and the 2^nd Respondent Muchohi Ruiru Gikonyo shall within 14 days of the date hereof present themselves to the Government Chemist Laboratories for the purpose of extracting DNA samples for testing to determine whether both are of the same paternity.  

iii)        The report shall be filed in Court within 7 days of the test being done.

iv)        The cost of the DNA test shall be borne by the 2^nd Applicant.

v)         The costs herein shall abide the final determination of this matter.

vi)        Mention on 27.4.22 for compliance. 

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 11TH DAY OF MARCH, 2022

___________________

M. THANDE 

JUDGE

In the presence of: -

…………………………………………………………… for the Applicants

………………………………………………….....…… for the 1^st Respondent

………………………………………………………… for the 2^nd Respondent

……………………………………………………..…….. Court Assistant