https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10464

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **SUCCESSION CAUSE NO. 435 OF 2013** **IN THE MATTER OF THE ESTATE OF THE LATE JOHN KIRAGU GITUKU (DECEASED)** **LYDIA MUTHONI WAHOME ………………………… 1ST PETITIONER** **RICHARD GITUKU KIRAGU ……………………….. 2ND PETITIONER** **CATHERINE WAIRIMU KIRAGU ………………….. 3RD PETITIONER** **PAUL NDERITU WANJIRU …………..……………... 4TH PETITIONER** **VERSES** **DAVID WAHOME KIRAGU ………………… OBJECTOR/APPLICANT** **RULING** 1. In his chamber summons application dated **14th July 2025** the Applicant seeks orders that: (a) The Court be pleased to vary and or set aside its orders in the ruling issued on 30th September 2021 which were issued pursuant to the application dated 20th February 2020. (b) The Court do grant an order that Catherine Kiragu do present herself at Kenya Medical Research Institute (KEMRI) at Nairobi for extraction of DNA samples for testing. (c) The results for the above DNA test in regard to the paternity of Catherine Wairimu Kiragu be forwarded to this Court by KEMRI. (d) The costs of the DNA be met by the estate of the deceased. 2. The application is based on the grounds thereof and the Applicant’s supporting affidavit sworn on 15th July 2025. 3. The substance of the application is that according to the Applicant the said Catherine is not a beneficiary in the estate as she is not the deceased child. 4. He said that at the time the petition was filed and the ruling delivered he was still a minor and thus his interest was not considered as provided under Rule 26 of the Probate and Administration Rules. 5. He also deponed that he learnt of the ruling much later as nobody brought it to his attention. 6. The Deponent went on to narrate how he came to learn about a burial dispute in which the mother to Catharine had stopped the deceased being buried under case No. Civil Suit No 1 of 2013 which was eventually resolved. 7. He further deponed that Catherine seem to have three birth certificates indicating that she was born in Nyeri as well as Pumwani maternity hospital. 8. Consequently, he deponed that it was doubtful whether she was the deceased daughter hence the need to undergo a DNA test. He said that Catherine ought to undergo a DNA test just like her sister Sylvia Wambui Kiragu. 9. He said that the ruling of 30th September 2021 was not brought to his attention when he attained the age of majority and he wonders why the Court directed that Sylvia alone be subjected to DNA test and not Catherine. 10. **Catherine Wairimu Kiragu** in her affidavit sworn on 1st December 2025 opposed the application vehemently. She deponed that the issue of DNA had been long decided by the ruling of this Court dated 30th September 2021(Abida Aroni J) as she was. 11. That the application for DNA test had been made by the Applicants’ mother Lydia Muthoni Wahome. The application therefore was *resjudicata* as the Court had already ruled on it and the Applicant did not file an appeal. 12. She deponed that all the relevant evidence including the support in form of school fees the deceased was paying on her behalf were submitted to the Court hence the Courts findings. 13. **Lydia Muthoni Wahome** the Applicant’s mother also filed a replying affidavit sworn on 1st December 2025 in support of the Applicant’s application. 14. She said that she did not understand why the Respondent was refusing to undergo the DNA tests if she was sure that she was the deceased child. 15. The parties were directed to file written submissions which they complied. **ANALYSIS AND DETERMINATION** 16. The Court has perused them together with the cited authorities. 17. Basically, the main question is whether the application was *resjudicata*. 18. This Court on 30th September 2021, Aroni j (as she was) stated as follows: ***“The Court is convinced that enough evidence has been placed before Court to prove that the deceased was the father of Catherine and he indeed did take care of her welfare including her education, subjecting Catharine to DNA test against ample evidence would be unjustified, unfair and an injustice. The Applicant has not laid any basis for the need for DNA test.”*** 19. The application had been made by the 1st Respondent, the Applicant’s mother who curiously has supported his application. 20. No appeal was preferred against the ruling to date and neither has it been set aside. 21. The Applicant deponed that as at this time of the ruling he was a minor and was not capable of participating in the proceedings. Now that he has come of age, he has found new evidence that Catherine was never the deceased daughter. 22. I find this application not only insincere but made to delay the final conclusion of this case. As a matter of fact, it is ridiculous for the 1st Respondent to support her son’s application with full knowledge that the Court had made a determination. 23. Assuming that the Applicant was under age, his mother who was her next of keen had already made similar application which by extension was attempting to secure his interest in the estate. 24. I agree with the Respondent, Catherine, that this application is *resjudicata* as provided under Section 7 of the Civil Procedure Act which states; ***“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”.*** 25. The matter concerned Catherine whose adjudication was to do with her paternity. Similarly in this application the same question is for determination. 26. Secondly the parties litigating are the same save that the Applicant has cleverly come under his own name. His mother who was the Applicant in the earlier application curiously supported her sons claim. 27. Nothing in my view has changed except the Applicant who has not brought anything new. The fact that he heard rumors through social media and other sources which I doubt their credibility does not mean that they are new and novel for this Court to review the earlier ruling. The Court does not depend on rumors in the social media but sound evidence. 28. There was therefore a final determination by the Court. I have extracted part of the ruling above which clearly determined this issue of DNA. 29. I think and without belaboring the point, the application is *resjudicata.* If the 1st Respondent was aggrieved enough, she ought to have filed an appeal but not to allow her son to continue vexing the Court as well as the Respondent. 30. **The application is otherwise dismissed with costs to Catherine Wairimu Kiragu.** **Signed dated and delivered via video link at Nairobi this** **9th day of July 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**