https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10482

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 352 OF 2013** **IN THE MATTER OF ESTATE OF MUSYOKA MULI – DECEASED** **ELIZABETH WANZA MUSAU …………….………………………… 1ST PETITIONER** **AGNETA MATETER MUSAU ………………..…………………….. 2ND PETITIONER** **=VERSUS=** **BEATRICE AJANGA ………………………………………………………… OBJECTOR** **Coram: Hon. Justice R. Nyakundi** **M/S Cheptinga & Co. Advocates** **M/S Njiru & Co. Advocates** **M/S Kilonzo & Co. Advocates** **RULING** 1. This Court in notices of objection dated 12th November 2013 and 11th December 2013 was able to hear the parties and in its decision pronounced itself as follows: *“With that said I hereby invoke the inherent powers of this court granted under Section 76 of the Law of Succession Act and direct that for purposes of progress in this matter and the only way to put the issue of the Objector's children identity at rest is if a DNA test if conducted between her children and the 1st Petitioner's children. I find that it is not necessary to exhume the body of the late Musyoka Muli for purposes of conducting a DNA test. It is possible for sibling DNA to be conducted to establish whether the Objector's children were sired by the deceased herein. I therefore, direct that both the 1st Petitioner children and the Objector's children be subjected to DNA test to ascertain the issue of the paternity of the Objector's children before this Court can make a finding whether or not the said Objector's children are entitled to a share of the deceased's estate.* *1. Accordingly, I hereby order as follows:-* 1. *That a DNA examination shall be done on both the Petitioner's children and the Objector's children in order to determine the issue of the identity of the Objector's children herein.* 2. *That the DNA to be done by Kenya Medical Research Institute (KEMRI).* 3. *That matching samples shall be taken from the bodies of the Petitioner's children and Objector's children in (i) above within (45) days from the date of this ruling.* 4. *That the costs of conducting the DNA test be shared equally between the Objector and the 1st Petitioner.* 5. *That the Kenya Medical Research Institute to submit their report within (30) days from the date of submission of samples.* 6. *That this case will be mentioned on 9th day of October 2023 to monitor compliance.* 7. What followed was admission of evidence under Section 48 of the Evidence Act in which the Court was taken through the DNA Report by Dr. Eva Aluvala dated 4th December 2023 based on the Lab Case No. KMR24-11-02-23. During her evidence before this Court it was her testimony that the *DNA testing was done to determine siblingship based on the testing results obtained from the analysis of the DNA loci listed above the probability of siblingship is 99.95% assuming prior probability equals 0.5. this report is positive for siblingship*. The KEMRI report was admitted before this Court as expert scientific evidence under Section 48 of the Evidence Act. 1. It is in our legal system that Courts widely accept DNA profiling as the most conclusive scientific method to prove kinship and paternity. However, Judges and Magistrates in doing so balance this scientific need against constitutional rights to rights to privacy Under Article 31 of the Constitution and the best interest of the child as provided for under Article 53 of the same Constitution and the Children’s Act. 1. The following cases have laid down the principles on adoption of scientific DNA Reports and its application to prove existence of facts in issue as provided for under Section 107(1), 108, 109 and 112 of the Evidence Act: * **NKM v NJS (2026):** The High Court reaffirmed that DNA testing is the most reliable and conclusive method for determining paternity. It highlighted that established jurisprudence favors scientific testing unless there are justifiable reasons to question the integrity of the results. * **BGG & GMG v EWK & Another (2024):** The Court of Appeal ruled on a succession dispute, ultimately determining that the necessity of resolving paternity justified ordering a DNA test, despite the applicants' arguments regarding their constitutional right to privacy. * **In re Estate of Mwangi (2026):** The High Court (Family Division) clarified that living persons cannot be forced to undergo DNA testing in inheritance battles, as doing so over objection violates the right to privacy and bodily integrity. * **FNT & another v CM on behalf of CSNT (2021):** The High Court ordered putative relatives and minors to submit to DNA testing at KEMRI to determine paternity, guided heavily by the principle of the "best interests of the child". 1. The manifestation of the DNA Profile Report is that it conclusively proves that the two individuals namely PMM and PWM are siblings from the same bloodline of the deceased with a DNA Profile match of 99.95%. These findings by the Analyst overwrites the statutory presumption of legitimacy under Section 112 of the Evidence Act. The basis is that scientific evidence holds precedency when it is undisputed. During the trial within a trial of this Succession Cause the contestation on the heirs to the estate as pleaded in the suit papers was finally resolved by way of the scientific DNA Test which competently sustained in the eyes of the law that they were birthed on the consanguinity and affinity relations. 2. However, it has to be borne in mind that the material placed on record shows that the siblings were directed by this Court to submit themselves voluntarily to KEMRI for purpose of extraction of the DNA samples which gave rise to the findings made by Dr. Aluvala a scientist from the same institution. As the Court made those declarations, at the back of its mind the following principles were simultaneously apt: *Testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during the wedlock. The power to direct such tests must be exercised with of utmost circumspection and only when the interests of justice imperatively demand such an intrusive procedure. Court must remain vigilant against fishing inquiries masquerading as legitimate requests for scientific evidence.* See *Goutam Kundu vs State of West Bengal [1993] 3 SCC 418, S.W.W vs G.M.K (2012) eKLR, R.M.K. vs A.K.G & Attorney General Petition No. 18 of 2013, Wilfred Karenge Gathiomi v Joyce Wambui Mutura & Another (2016) eKLR*. 1. From the above discussion, it emerges that Courts in Kenya cannot order blood test for DNA testing as a matter of course. However, in the proceedings held before this Court culminating into the orders for the DNA testing it was established that a strong prima facie case existed to order for a DNA test to dispel the presumption arising under Section 112 of the Evidence Act. Like other rights and fundamental freedoms which form part of the fundamental freedoms protected under the Bill of Rights in our Chapter 4 of our Constitution including the right to life in Article 26 and personal liberty under Article 29 while the right to privacy in Article 31 is not an absolute right. That is how the decision was made to encroach upon the privacy of the two individuals claiming a share of the estate of the deceased and the same was tested within the touchstone of permissible restrictions on fundamental rights in the context of Article 24 of the Constitution. That the invasion of their right to privacy was justified on the basis of the Law of Succession Act so that the Court can conclusively establish the legitimacy of inheritance as defined in Section 29 of the Law of Succession Act. The Court had also considered the existing evidence before ordering that the two siblings undergo a DNA test. 1. What has been settled by the DNA report is that the initial presumption of legitimacy has been reaffirmed by scientific evidence which remains undisputed and unchallenged for the children’s identity of the deceased which should have been allowed to be sacrificed so as to deprive them of their rights to inheritance at the behest of the opposing parties to the intestate estate. 2. For those reasons, a declaration be and is hereby made that the aforesaid children being Victoria Prudence Mbinya (V.P.M) and Precious Musyoka (P.W.M) are entitled to inheritance as heirs to the estate of the deceased in consonant with Section 31 of the Law of Succession Act as read with Article 27(4) of the Constitution 2010. The High Courts sitting as constitutional Courts throughout the Republic of Kenya and the Supreme Court have issued several landmark judgments that firmly establishes and protects the inheritance of all children eliminating discrimination based on gender, birth status, marriage or adoption. It is therefore trite in Kenya that all children regardless of gender or age have an equal right to inherit from their parents’ intestate estate. *See the principles in* *Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others [2025] KESC 35 & Peter Karumbi Keingati & 4 Others v Ann Nyokabi Nguthi & 4 Others [2015] eKLR*. 3. What the Court has to bear in mind now is to utilize the proportionality test to exercise discretion to balance customs, religious, cultural, autonomy with the rights and fundamental freedoms in Chapter 4 of the Constitution and proceed to conduct an inquiry threshold on equality clauses in Article 27(1) (4) of the Constitution. The key parameters which ought to be underscored include; first, parental status neutrality meaning that a child’s birth status be either marital or non-marital cannot legally act as a bar to his or her inheritance rights. Second, is about the supremacy of the Constitution in which customary, religious, cultural and personal legal regimes like the law of succession Act or Sheria Law are explicitly subordinate to constitutional equality provisions in Article 27(4) of the 2010 Constitution. Third, it is the best interest principle provided for in Article 53 of the Constitution to give effect to the social economic protection of vulnerable children a legal priority over rigid customary/cultural traditions in our multi-ethnic society. To that extent, the children of the Objector be and are hereby allowed to inherit the deceased’s estate in terms of Sections 35, 36, 37, 38, 39 as construed with Section 40 on the equitable principles. I make no orders as to costs. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 14TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**