https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10896

In re Estate of Walubengo (Deceased) (Succession Cause 12AA of 2023) [2026] KEHC 10896 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 10896 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 12AA of 2023 S Mbungi, J July 15, 2026 IN THE MATTER OF THE ESTATE OF BARASA WALUBENGO (DECEASED) Between Alice Nanyama Nyambande 1st Petitioner Peter B Walubengo 2nd Petitioner and Naomi Nambande Objector Ruling 1.The applicant herein filed chamber summons application dated 22nd January 2026 seeking the following orders;a.That this application be certified urgent and be heard exparte in the first instance (spent)b.That this court be pleased to review and set aside the orders issued herein in respect of the application dated 19/11/2025 that was set for ruling on 15/7/2026c.That this court be pleased to grant the orders for security as prayed in the said applicationd.That this court be pleased to set a date for the parties hereto to attend the Government chemist in Kisumu for DNA sampling.e.That the samples of FRANCIS WABWIRE MUKAMO be taken at his place of residence. 2.The Application is premised on the grounds set out on its face and on the supporting affidavit sworn on the same day by the applicant, who contends that there is an already existing court order dated 23/11/2023 which required one FRANCIS WABWIRE MUKAMO to undergo a DNA test; however, he, Francis, is ailing, immobile and unable to go to the Government Chemist for the DNA testing. 3.He opposes the ruling slotted for 15/7/2026 stating that it would prejudice them if the DNA is not done. 4.The respondent filed grounds of opposition on 17th March 2026 stating that the application was devoid of merit 5.The application was canvassed through written submissions. 6.In their application dated 16th June 2016, the Respondent opposes the application by the 1st Applicant and asserts that the dispute concerns the estate of Barasa Walubengo and that it is unwarranted to compel Francis Wabwire Mukamo, who is neither a beneficiary or have an interest in the estate, and claimed that there was no evidence to prove that Francis was ailing or immobile. 7.He denied the claim for review, stating that there was no error, discovery of new evidence or any sufficient reason for review or set aside the directions issued on 11th December 2025. 8.On whether the court should issue a compulsory DNA testing, he avers that the person being summoned was neither a child in the sense under the Succession Act nor a dependant and avers that DNA testing should not be taken lightly and quoted the case of in re Estate of the late Moi (2026). They claim that the compulsory mandating of Francis Wabwire to undergo DNA testing would amount to violating his rights under the Constitution, such as the right to have his dignity protected given the intrusive nature of the process. 9.She claims that Francis Wabwire has no interest in the matter and neither did he consent to the testing; hence it is a violation of his rights. They aver that the application is a fishing expedition and unnecessary and pray that the application be dismissed in its entirety. Analysis and determination 10.I have considered the pleadings and the submissions filed by the learned counsels. The issue that arises for determination in this application is whether the Applicant has laid sufficient basis to warrant this court to review its earlier directions and issue consequential orders to facilitate the implementation of the DNA order issued on 23rd November 2023. 11.The jurisdiction of this court in succession proceedings is conferred by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Section 47 of the Law of Succession Act states that;“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient." 12.Rule 73 of the Probate and Administration Rules provides: "Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." 13.The Respondent has opposed the application on the ground that the Applicant has not met the threshold for review and that Francis Wabwire Mukamo is neither a beneficiary nor a dependant of the estate. 14.It is not disputed that on 23rd November 2023, Hon. Justice PJ Otieno issued an order directing that DNA testing for one Francis Wabwire be undertaken. That being said, there is no evidence placed before this court that the said order has ever been appealed against, reviewed, varied, stayed or set aside. 15.The law is clear that as long as there is a subsisting court order, it is binding upon the parties until it is lawfully discharged. Courts do not issue orders in vain, nor should parties be permitted to frustrate their implementation by raising objections that ought to have been addressed at the time the orders were being sought. 16.In the present case, the Applicant is not inviting this court to reconsider whether DNA testing ought to be undertaken. That question was settled by the order issued on 23rd November 2023. The only issue brought before me is the alleged inability of Francis Wabwire Mukamo to travel for the DNA testing given his medical condition. 17.This court is therefore not being called upon to issue a fresh DNA order. Rather, it is being invited to facilitate compliance with an existing court order. 18.In my considered view, once a court has exercised its judicial discretion and directed that DNA testing be undertaken, the subsequent procedural arrangements necessary to actualize that order fall squarely within the Court's inherent jurisdiction under Rule 73 of the Probate and Administration Rules. 19.I also take judicial notice that the intended DNA exercise forms part of the evidence that the court will use to determine the outcome of the succession proceedings. If this court proceeds to deliver a ruling before the determination of the DNA process, then the order issued earlier on 23rd November 2023 will be defeated, which would occasion prejudice to the parties and undermine the proper administration of justice. 20.Although the Respondent contends that Francis Wabwire Mukamo is neither a beneficiary nor a dependant of the estate, that issue cannot properly be addressed in this application. The court already directed that the DNA testing be undertaken, and the order remains in place; if I were to revise it now, it would be the same as this court sitting on its own appeal. 21.Having considered the totality of the material before me, I am satisfied that the orders sought are intended solely to facilitate compliance with the existing order issued on 23rd November 2023. No prejudice has been demonstrated that cannot be addressed by the orderly supervision of the DNA exercise by the Government Chemist. On the other hand, declining the application would substantially impede the implementation of a subsisting court order and delay the just determination of the succession dispute. 22.Consequently, I find merit in the Chamber Summons dated 22nd January 2026. 23.The application is hereby allowed as follows;a.The order directing DNA testing issued on 23rd November 2023 is hereby reaffirmed and shall remain in forceb.The Government Chemist, Kisumu, shall liaise with the parties and conduct the DNA sampling within thirty (30) days of this ruling.c.In view of the Applicant's assertion that Francis Wabwire Mukamo is unable to travel, the Government Chemist is hereby authorised to obtain his DNA sample at his place of residence, should his physical condition so require.d.The DNA report shall be filed in court within fourteen (14) days after the sampling exercise.e.The directions issued in respect of the application dated 19/11/2025, culminating in the ruling scheduled for 15/11/2026, are hereby reviewed and set aside to the extent necessary to facilitate compliance with the Court's order issued on 23rd November 2023.f.Costs of this application shall abide the outcome of the succession cause.g.Mention 8.10.2026. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 15TH DAY OF JULY, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/Zilda.Mr Mbetera for the Respondent present online.Mr Munela for the Applicant present online.1st Petitioner present.Objectors present.