https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11028

In re Estate of Kufwafwa alias Imbuye (Deceased) (Succession Cause 13 of 2017) [2026] KEHC 11028 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11028 (KLR) Republic of Kenya In the High Court at Kitale Succession Cause 13 of 2017 RK Limo, J July 22, 2026 IN THE MATTER OF THE ESTATE OF ENOCK IMBUYE KUFWAFWA alias ENOCK KUFWAFWA IMBUYE alias ENOCK IMBUYE – DECEASED Between Rick Masidne Imbuye 1st Applicant Denis Muchuma Imbuye 2nd Applicant Rosealive Khavetsa 3rd Applicant Violet Injete Imbuye 4th Applicant and Ruth Imbuye 1st Respondent Erick Namwoyi Imbuye 2nd Respondent Ruling 1.Before this court are two applications dated 23-11-2023 and 1-2—2024. Both applications were canvassed together vide affidavits and written submissions. This ruling is therefore in respect to the 2 applications but for purposes of clarity this court will deal with them separately within this same ruling. 2.To begin with the application dated 23-11-2023, the applicants herein Gerald Kwena Kisaina, Sarah Injete Imbuye, John Mukhwana Imbuye, Zacharia Odera Imbuye, Roseline Khavetsa Imbuye and Faith Imbuye have moved this court seeking the following reliefs;i.That the applicants herein be recognized as dependants and as such beneficiaries of the estate of the deceased.ii.That the applicants be included on the list of the beneficiaries of the estate of the deceased.iii.costs 3.The application is premised on the following grounds;a.That the applicants herein are the children of the deceased.b.That they were being provided for by the deceased prior to his death. 4.The application is further supported by the affidavit sworn by Florence Khakali Nasong’o on 23rd November 2023. She stated that she had a relationship with the deceased and out of the said relationship Sarah Injete Imbuye and John Mukhwana Imbuye were born. That she was staying with the deceased as husband and wife although no formalization was done. That the deceased supported the children and prays that her children be recognized as the beneficiaries of the estate of the deceased. She attached the certificates of birth of her two children and minutes of a meeting as evidence. 5.The application is also supported by the affidavit sworn by Florence Naliaka Wanjala on 23rd November 2023. She also stated that she was in a relationship with the deceased where two children were born being Roselyne Atuvuka and Faith Imbuye who are still minors. She further states that the deceased supported them and they are well known to the petitioners. She also prays that the children be recognized as the children of the deceased. 6.The court directed that parties do file responses to the application and the same be canvassed by way of written submissions. Mr Oduor submitted that they were not opposed to the application dated 23rd November 2023. The petitioners did not file response to the application despite the court directions. Also they did not file their submissions. 7.The application is not opposed and the applicants have filed written submissions. 8.This court has perused through the record and finds no response to this application but that notwithstanding the same shall be determined on the merits. The main issue in this application is whether the applicants have established that they are dependants within the meaning of the law under Section 29 of the Law of Succession Act and qualify as beneficiaries. 9.While the application is unopposed, it is trite that the court must independently interrogate its merits because an unopposed application is not automatically meritorious. In Konchellah –vs- Sunkuli & 2 others (2018) KESC 58 (KLR) the Supreme court held that;“…Be that as it may, as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter. We see no such jurisdictional issue in the application before us, Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this court………..” 10.The applicants in their written submissions have put some weight to their claim on the exhibited birth certificates to proof that the deceased in this cause was their father. A birth certificate alone especially if obtained through late registration is not sufficient proof of dependency. A claimant must provide other supporting documents or evidence to show that the deceased recognized them and supported them in their lifetime. 11.This court has perused through the birth certificates exhibited and they belong to Gerald Kwena Kisaina, Sarah Injete and John Mukhwana. The names indicated in the birth certificate of Sarah Injete is different from the names that she has used in this application because she has added the name “Imbuye’. The same anomaly is also noticed in the birth certificate of John Mukhwana exhibited as “FKN 1b’. It does not have the name Imbuye. They have not offered any explanation on the anomaly casting doubts about the authenticity of the said birth certificates. In the face of such anomalies, this court is unable to find that the applicants based merely on the 2 birth certificates, they have proved dependency. 12.The applicants have also relied on minutes of a meeting held on 30/9/2023 where they allege that they were recognized as dependants of the deceased. However there is no evidence availed showing where and when the meeting was held, and/or who among the family members of the deceased attended. None of the family members present if at all has filed a sworn affidavit to confirm one, that such a family meeting was indeed held and two, that the applicants were recognized as dependants or children to the deceased. 13.The applicants have conceded that the deceased had no capacity to marry their mothers but have not proved to the required standard that the deceased was their biological father and/or cared for them and recognized them during his lifetime. The provisions of Section 29 of Law of Succession Act provides;“For the purposes of this Part, "dependant" means—(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.” 14.From the evidence placed before this court, the claim by applicants herein that they are dependants and should be recognized as such is unsustainable in law. There is no evidence adduced that demonstrate that they were sired by the deceased. The birth certificates of Gerald Kwena Kisaina, Sarah Injete and John Mukhwana were issued vide late registration and there is no evidence that the deceased gave permission or authorized to have his name registered as their father. There is also no evidence that the deceased maintained them and the information contained in the Eulogy earlier tendered in evidence and on record does not recognize the applicants as children of the deceased. 15.In the premises this court finds no merit in the application dated 23-11-2023. The same is disallowed. 16.This court will now turn to the application dated 1-2-2024 where the applications Rick Masinde Imbuye, Denis Muchuma Imbuye, Roseline Khavetsa Imbuye and Violet Injete Imbuye have moved this court vide a notice of motion seeking the following orders’i.Spent.ii.That this honourable court be pleased to order that the grave of the late Enock Imbuye Kufwafwa situate in Chepchoina Sub location, Twiga Location within Trans Nzoia County be opened to exhume his body/remains with a view to taking samples therefrom for purposes of Deoxyribonucleic Acid (DNA) test.iii.That the Officer Commanding Endebess Police Station to provide security and supervise execution of order (ii) above.iv.That a declaration be made that the applicant herein Rick Masinde Imbuye is appointed a co-administrator of the estate of the deceased herein. 17.The application is based on the following grounds;a.That the respondents herein have shown utter disregard to court orders in so far as carrying out a DNA test is concerned to the detriment of the applicant herein.b.That the respondents have declined to present themselves for purposes of conducting DNA despite court orders and correspondences asking them to do so from advocates on record.c.That it is a kinship adoption thus a freeing certificate is not necessary in the circumstances considering the consent given by the minor’s grandfather.d.That there is no other option for compliance with the said order of court other than exhumation.e.That unless the applicant herein is appointed a co-administrator his interest and those of his siblings stand to be in jeopardy as the estate is subject to waste by the respondents herein.f.That it is in the interest of justice and fairness that this honourable court grants the orders sought. 18.The application is supported by undated affidavit in support sworn by Rick Masinde Imbuye the 1st applicant/objector herein. In his affidavit, the deponent indicated that the applicants are the children of the deceased born by Betty Mukite Sichangi. That the deceased maintained them by taking them through school, paying school fees as well as household expenditure. The deponent stated that according to the judgment dated 1st February 2023 and delivered on 17th February 2023, the court directed that DNA test be carried out in respect of his siblings and against the children of the 1st house. That the respondents have frustrated the DNA process and have failed to cooperate despite numerous correspondences. The deponent states that the respondents have refused to avail neither themselves nor their siblings for the exercise despite being appointed as the administrators of the estate. 19.Applicant deposes that it will be just and fair that remains of the deceased be exhumed for purposes of carrying out DNA test to establish their claims on paternity. 20.The respondents have opposed this application vide a replying affidavit by Ruth Imbuye sworn on 5-4-2024. The respondents insist that the applicants are not beneficiaries to the estate of the deceased. 21.The applicants and the respondents/administrators filed written submissions. The applicants filed their undated submissions and the issues raised were whether DNA should be conducted and whether the DNA samples should be extracted from the grave because the petitioners have failed to avail their samples. The applicants submitted that DNA should be conducted so as to ascertain paternity of the applicants whether they are the children of the deceased. The applicants are of the view that owing to the frustrations by the respondents to avail their DNA samples, the court ought to exercise its discretion and allow the exhumation of the body of the deceased for purposes of extracting samples for the DNA. 22.The respondents/administrators in their submissions dated 11th May 2026 opposed the application on the grounds that the deceased died on 18th February 2016 and 10 years have since lapsed. That there is inordinate and unexplained delay. That in such a case the court is invited to balance on the dignity of the dead as well as cultural, religious concerns and family privacy. They further state that the court had rendered itself that there was no proof that the applicants and their mother were maintained or supported by the deceased during his lifetime. 23.The main issue for determination now before court is whether the grave of the late Enock Imbuye Kufwafwa who died more than a decade ago and his remains buried in Chepchoina Sub location Twiga Location within Trans Nzoia County should be opened with view to exhuming the remains of the deceased so as to take samples therefrom for purposes of DNA tests to establish paternity. 24.This court has perused through the judgment of Hon Justice Kimaru dated 1-2-2023 delivered on 17-2-2023 and finds that the judge ordered for a “patrilineal DNA test” to be conducted on the samples to be provided by the applicants and the respondents. The good judge never ordered for exhumation of the body of the deceased for that purpose. 25.Exhuming a body of a departed deceased person is not a simple matter. In my view such a remedy can only be issued in rare circumstances if at all and only where no alternative solutions/remedies are available. 26.In re estate of NKM (DCD) 2021 KEHC 2956 KLR the court held that;“The objector wants the body exhumed while the petitioner is opposed. Whereas the law does not expressly provide or for extraction of samples from a deceased person’s body, courts should exercise extreme caution not to interfere with the peaceful resting of the departed ones if there is an alternative way or source or method of achieving the intended results.” 27.In most African cultures, the bodies of deceased persons are not only decently and reverently interred, they are left and should be left undisturbed. In other words the deceased should be left to rest in eternal peace without unnecessarily disturbing them. So while this court is cautious not to place any fetter to the exercise of discretion where circumstances demand exhumation, the societal norms and beliefs need to be taken into account. 28.The applicants’ reason for exhumation is that it will assist in proving who their father is which will determine whether they are dependants entitled in the administration and distribution of the estate. In the case of RNC and 2 others vs SMG 2017 KEHC 9769 (KLR) the court held as follows;“………….an order for exhumation of a deceased person in order to have a DNA testing to carry out a paternity or maternity test of a child is a drastic order which must only be made in exceptional and compelling circumstances. The deceased was buried some 10 years ago and to make an order after the said years in my view would be a drastic order. His body should be left in the grave undisturbed. The applicant is at liberty to adduce other evidence to prove his case.” 29.This court finds that the judgment of Justice Kimaru can be implemented without resorting to the unpleasant and unnecessary exhumation of a body buried more than 10 years ago. The alternative option ordered by the good judge ought to be used because the same results can be achieved without the attendant psychological trauma that can be caused by exhumation of deceased’s body buried more than 10 years ago. As I have observed above the deceased’s body should not be disturbed but left to rest in peace.In the premises the application dated 1-2-2024 is declined but I make no order as to costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 22ND … DAY OF … JULY , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofTigogo holding brief for Munialo for the applicantNo appearance for Keya for the respondentDuke/Chemosop- court assistants