https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12152

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 194 OF 1995** **IN THE MATTER OF ESTATE OF KIBYEGO KOGO CHEPKWONY – DECEASED** **EDNA CHEPKOECH TANUI ……………………………………………….. APPLICANT** **=VERSUS=** **VERONICAH JEPSUGE CHEPKWONY ……………………………… RESPONDENT** **Coram: Justice R. Nyakundi** **M/S Kidiavai & Co. Advocates** **Francis Ndar Omollo & Associates Advocates** **M/S Seneti & Oburu Ass. Advocates** **JUDGMENT** **BACKGROUND** 1. Following the death of the Deceased Kibyego Kogo Chepkwony a necessity arose of petitioning for Grant of Letters of Administration Intestate by dint of the death of the deceased which occurred on 3rd May 1994. According to Form P&A 5 dated 30th October 1995 the deceased died intestate and left the following surviving him as per the captioned date above: 2. Veronica Jepsuge Chekwony – Adult Female 3. Geofrey Chepkwony – Adult Son 4. Lilian Chepkwony – Adult Female 5. Philip Chepkwony – Adult son 6. Samson Chepkwony – Adult son 7. Isaac Chepkwony – Minor son 8. Hillery Chepkwony – Minor son 9. Stephen Chepkwony – Minor son 10. In addition, the full inventory of all the assets survived of the deceased at the date of his death include the following: (a) Part of L.R. No. 4484 measuring 8 acres & 51.2 acres (b) Title Nos Nandi/Ngechek/641, Eld. Municipality/Block 6/284 (c) Kaplamai/Sirende Block 2/Ngonyek/91 & 92 (d) Kipkaren Site & Service Scheme B-plot No. 634 Eld. (e) Plot No. 91 - Mois' Bridge Centre (f) Shares in KGGCU, KCC Ltd & Ngonyek FCS Ltd (g) Bank Shares in KCB, Barclays and Standard. (h) Tractor Reg. Nos KUE 094 & KXG 966 (i) Lorry Reg. Nos aKLX 099, KYS 497 & KYB 841 (j) Chev. Pick Up Reg. No. KLX 941 (k) Peugeot 504 Saloon Reg. No. KAA 546F 1. In the matter of this estate Grant of Letters of Administration Intestate was issued to Veronica Jepsuge Chepkwony on 25th January 1996. Thereafter summons for confirmation of grant was filed and consent to that confirmation dated 30th August 2016 was given by the following beneficiaries: 2. Geoffrey Kipchumba Chepkwony 3. Lilian Jelagat Chepkwony 4. Philip Cheruiyot Chepkwony 5. Samson Kimeli Chepkwony 6. Isaac Kipkemboi Chepkwony 7. Hillary Kiplimo Chepkwony 8. Stephen Kibet Chepkwony 9. What followed was a Certificate of Confirmation of Grant dated 20th February 2017 contextualized as follows by the session Judge: ***I HEREBY*** *certify that the above written Grant of representation to the Estate of the late KIPYEGO KOGO CHEPKWONY issued to VERONICA JEPSUGE CHEPKWONY therein named has this 7th day of February, 2017 been confirmed by the Court pursuant to the Provisions of Section* *71 (3) of the Law of Succession Act.* ***ISSUED*** *at* ***ELDORET*** *this* ***20th*** *day of* ***February, 2017*** ***HON. D. O OGEMBO*** ***Judge of the High Court*** ***DESCRIPTION OF PROPERTY SHARE OF HEIRS*** | | | | | --- | --- | --- | | 1. *Veronica Jepsuge Chepkwony* | *Eldoret Municipality Block 6/284 Kaplamai/Sirende Block 2/Ngonyek/91 Kaplamai/Sirende Block 2/Ngonyek/LR. No. 4484 Soy/Turbo – 8 Acres LR. No. 4484 Soy/Turbo – 52 Acres* *Lorry Reg. No. KYS 497, No. KYB 841 KLX 099, Car Reg. No. KLX 941, Tractor Reg No. KUE 094 and KXG 966* | *To Be Registered And Transferred In Her Name And To Hold In Trust For Herself And Geoffrey Chepkwony, Lilian Chepkwony, Philip Chepkwony, Samson Chepkwony, Isaac Chepkwony, Hilary Chepkwony and Stephen Chepkwony* | 1. This Court being presided over by Omondi J as she then was on 5th day of February 2020 amended the Certificate of Confirmation of Grant in the following terms: ***AMENDED CERTIFICATE OF CONFIRMATION OF A GRANT*** *HEREBY certify that the above written Grant of representation to the Estate of the late KIPYEGO KOGO CHEPKWONY issued on 20TH February 2017 to VERONICA JEPSUGE CHEPKWONY therein named has this 3rd day of FEBRUARY, 2020 been rectified by the Court by substituting the names VERONICA JEPSUGE CHEPKWONY with KOGO CHEPKWONY HOLDINGS pursuant to the Provisions of Section 71 (3) of the Law of Succession Act.* ***ISSUED*** *at ELDORET this* ***10th*** *day of* ***February 2020.*** ***H. A. Omondi*** ***Judge of the High Court*** ***AMENDED SCHEDULE*** ***Name Description of Property Share of Heirs*** *Kogo Chepkwony Holdings Eldoret Municipality Block 6/284* *Kaplamai/Sirende Block 2/Ngonyek/91* *Kaplamai/Sirende Block 2/Ngonyek/92* *Kiplombe/Kiplombe Block 12(Chepsiria)/13-18.79 Ha* ***Whole*** *Kiplombe/Kiplombe Block 12(Chepsiria) 73-3.179 Ha* ***Whole*** *Lorry Reg. No. KYS 497, NO.KYB 841* ***Whole*** *KLX 099, CAR REG. NO. KLX 941* ***Whole*** *TRACTOR REG. NO. KUE 094 AND KXG 966* ***Whole*** *Plot No.634/Kipkaren Site and Service Scheme* ***Whole*** *(Signature)* ***H. A. Omondi*** ***Judge of the High Court*** 1. In the years which followed an application for revocation of grant dated 19th April 2021 by Edna Chepkoech Tanui was placed before Ogolla J as he then was seeking the following orders: 2. *Spent.* 3. *That the certificate of grant of Letters of Administration issued to the Respondent herein on 20th July, 2017 and amended on 10th February 2020 in Eldoret High Court Succession Cause No. 194 of 1995 be revoked or annulled on the basis that the same was obtained fraudulently and by concealment from Court of material facts relating to the Estate of the deceased.* 4. *That an order of inhibition do issue restricting any dealings in all those parcels of land known as ELDORET MUNICIPALITY BLOCK 6/284; KAPLAMAI/SIRENDE BLOCK 2/NGONYEK/91; KAPLAMA/SIRENDE BLOCK 2/NGONYEK/92; KIPLOMBE/KIPLOMBE BLOCK 12(CHEPSIRAI)/13; KIPLOMBE/KIPLOMBE BLOCK 12(CHEPSIRAI)/73; PLOT NO. 643/KIPKAREN SITE AND SERVICE SCHEME pending the inter-parties hearing and determination of this application.,* 5. *That any and all subsequent orders relating to land title numbers ELDORET MUNICIPALITY BLOCK 6/284; KAPLAMAI/SIRENDE BLOCK 2/NGONYEK/91; KAPLAMA/SIRENDE BLOCK 2 /NGONYEK/92; KIPLOMBE/KIPLOMBE BLOCK 12 (CHEPSIRAI)/13; KIPLOMBE/KIPLOMBE BLOCK 12(CHEPSIRAI)/73; PLOT NO. 643/KIPKAREN SITE AND SERVICE SCHEME and titles to motor vehicles lorry registration number KYS 497, KYB 841, tractor registration number KUE 094 and KXG 966 be cancelled and titles ordered to revert into the names of the deceased.* 6. *That the distribution of the aforementioned properties by the Respondent be forestalled pending the inter-parties hearing and determination of this application.* 7. *That the Court do declare that the Applicant who was left out in the application of grant is a beneficiary to the estate and is entitled to share the assets of the estate.* 8. *That costs of this application be borne by the Respondent.* 9. The Judge on considering the matter comprehensively ruled as follows: 10. *The Applicant claims to be a biological child of the deceased. It was her case that the deceased was in a relationship with her mother, one Rose Tanui and out of that relationship the Applicant was conceived. The Applicant, however save for mentioning that the deceased was her biological father, failed to produce any evidence to support the said allegations. The Applicant has not tendered any evidence to prove that deceased was in fact her biological father. Further, there is nothing whatsoever on record to indicate that the Applicant was a dependant of the deceased. In view of the foregoing, I cannot therefore conclusively find that the Applicant has proved that the deceased was her biological father.* 11. *It is pertinent to note that however, in the interest of justice, it is paramount that all beneficiaries of the deceased are properly catered for. The Law of Succession Act in its very nature aims at ensuring all beneficiaries of a deceased person and their interests are protected. It is my opinion that the most efficient way to prove dependency in this matter would be through DNA evidence because the Applicant asserts that she is the biological child of the deceased. This Court takes note that the Applicant has not prayed for DNA to be conducted. It is indeed a now settled principle in law that parties are bound by their pleadings. See (David Sironga Ole Tukai v Francis Arap Muge & 2 others Civil Appeal No. 76 of 2014 eKLR). This Court can therefore not on its own volition order for a DNA test to be conducted.* 12. *Accordingly, for the reasons set out above, I find that the evidence tendered by the Applicant is not sufficient for this Court to make a finding that she is a biological child or dependent of Kipyego Kogo Chepkwony (deceased) and that she is entitled to any share of his estate. I find that this application lacks merit and the same is dismissed. Parties to bear own costs* 13. This far this story has been told in a multifaceted litigation and down memory lane, this Court has been asked to determined the following applications. First and foremost is an application dated 27th November 2025 where the Objector/Applicant is seeking the following orders: 14. *Spent* 15. *Spent.* 16. *That upon reinstatement of this suit the Applicant be allowed by the honourable Court to file all the necessary evidential documents which were not filed previously due to the negligence and omission by the previous counsel who was on record.* 17. *That the honourable Court do order that the Applicant/objector do undertake DNA examination in order to establish whether the Applicant is a biological child of the deceased person herein one Kipyego Kogo Chepkwony.* 18. *That upon the DNA results confirming that the Applicant is indeed her biological child of the deceased, the Court do declare that* * *The Applicant who was left out in the application of grant is a beneficiary to the estate and is entitled to share the assets of the deceased estate.* 19. Which application is based on the Grounds: 20. *That this matter was dismissed for want of proceedings due to the fact that former counsel for the Applicant failed to attend Court proceedings* 21. *That the Applicant maintains and contends that she is a biological child to the deceased and that at her tender age, the Applicant was being provided for by the deceased through her mother* 22. *That the Applicant's mother has since married another man and that the Applicant's mother is now unwilling to assist the Applicant and at the same time the Applicant is not accepted at the new home where her mother is currently married. (The mother has been persuaded by the Petitioners side to support them and was made to sign some affidavit whose contents she didn't understand.* 23. *That due to the poor upbringing and care, the Applicant did not receive quality education the net effect being that she is unemployed currently living on rental rooms just struggling to pay monthly rent, yet the deceased's estate is fairly rich with various properties* 24. *That following numerous family meetings some being presided by the Area Chief, indeed the Petitioner herein did recognize the Applicant and in effect the Petitioner herein entered an agreement with the Applicant that she pays the Applicant some of money Ksh. 500,000/- plus some two acres of land but which she has failed to fulfil.* 25. *That the Applicant is a commoner who lives in a rural set up and was advised by her previous counsel just to wait the Court’s verdict but the said Advocate went mute without communicating about the Court verdict. The Applicant later opted to engage counsel who is now on record and upon perusal of Court record the Applicant was shocked that the suit had been dismissed for want of prosecution as the previous counsel on record failed to file very fundamental and crucial documents which would have assisted the honourable Court make a decision whether the Applicant was a biological child or a dependant.* 26. *That the Applicant stands to suffer irreparably if the orders sought are not granted* 27. *That the costs of this application be provided for. And on the other grounds to be adduced at the hearing hereof.* 28. In support of summons for reinstatement of suit is an affidavit sworn by Edna Chepkoech Tanuiwhomade oath and stated as hereunder: 29. *That the deceased herein Kipyego Kogo Chepkwony alias “George Chepkwony” is my biological father although my mother had not been formally married to my late father* 30. *That my late father left eight beneficiaries including myself* 31. *That the Petitioner/respondent is my stepmother who fraudulently concealed from the Court the fact that I was a biological child of the deceased person herein* 32. *That my mother Rose Chemgetich Tanui once revealed to me that the deceased was my biological father but due to family difference with my mother who has since married another man she later turned against me through the influence of the man who later married her on the basis that they are family friends to the Petitioner* 33. *That the hostile relationship between me and my mother indeed delayed me in taking action regarding this succession suit* 34. *That I was later connected with my previous counsel by human rights activists, but said counsel did not represent me well leading to the dismissal of this suit for want of prosecution.* 35. Summons by Kidiavai Company Advocates for the Applicants dated 16th January 2026 seeks the following orders: 36. *The ex parte proceedings and orders made on 5th December 2025 in respect of the Applicants’ application dated 27th November 2025 be set aside and/or vacated.* 37. *The said application dated 27th November 2025 be reinstated for hearing inter-partes on a priority basis.* 38. *Costs of this application be in the cause.* 39. Which application is based on the grounds that: 40. *The Respondent/Applicant was never served with the application dated 27th November 2025 or with any mention or hearing notices relating thereto.* 41. *The proceedings leading to the ruling and orders complained of were conducted without the participation, notice or knowledge of the Respondent/Applicant.* 42. *The Respondent/Applicant became aware of the matter for the very first time only on 9th January 2026, when they were physically served with the subsequent application in this cause.* 43. *The Respondent/Applicant has therefore been condemned unheard, contrary to Article 50 of the Constitution guaranteeing the right to a fair hearing.* 44. *It is in the interests of justice, equity and fairness that the ruling and subsequent orders be set aside and the matter heard afresh.* 45. Which application is further based on the supporting affidavit sworn by Aggrey Lucas Kidiavai, on oath and stated as follows: 46. *THAT I am an Advocate of the High Court of Kenya practising as such under the name and style of M/S Kidiavai & Company Advocates both in Kitale and Nairobi, and we are on record for the Applicants herein and therefore competent to swear this affidavit.* 47. *THAT we became aware of this matter for the first time on 9th January 2026, when they were personally served with the current application filed herein.* 48. *THAT prior to 9th January 2026, neither the Respondent nor our firm had ever been served with any pleadings, notice of appointment, mention notices, hearing notices or the earlier application that led to orders of this Honourable Court.* 49. *THAT there is no affidavit of service on record demonstrating that the Respondent/Applicant was ever served. The purported affidavit of service uploaded on the e-filing system is inaccessible, cannot be opened and therefore cannot be verified as proof of service.* 50. *THAT from perusal of the record, it is evident that an application dated 27th November 2025 was filed, heard and determined culminating in orders reinstating a suit which had been dismissed for want of prosecution on 24th February 2024, all done without service, participation or knowledge of the Respondent/Applicant.* 51. *THAT the said orders were also issued in respect of a matter that had lain dormant for over four years after filing, and in which the Applicant had demonstrated prolonged indolence and disinterest, as the summons for revocation filed in April 2021 had not been prosecuted before dismissal.* 52. *THAT the Respondent/Applicant is aggrieved by the reinstatement and particularly by the prayer requiring her to undergo DNA examination, which she intends to strongly oppose on the following grounds, among others: i. The widow, being a non-blood relative of the deceased, cannot scientifically or legally provide genetic comparison capable of establishing paternity; ii. The request is intrusive and violates constitutional rights including privacy, bodily integrity and dignity under Articles 28, 29 and 31 of the Constitution; iii. The Applicant has not laid any prima facie evidentiary basis to justify a DNA order, relying only on unfounded allegations and hearsay; iv. The estate was lawfully administered and the grant confirmed in 2017, and the litigation is reopened purely on speculation and suspicion; v. The Applicant sat on her alleged rights for decades, raising undue delay and prejudice to the beneficiaries.* 53. *THAT the Respondent’s non-participation prior to 9th January 2026 was neither deliberate nor negligent, but solely due to non-service.* 54. *THAT the Respondent/Applicant is desirous of participating in the proceedings and defending the estate and will suffer grave prejudice if the orders already issued remain unchallenged.* 55. *THAT the interest of justice demands that the ruling and consequential orders be set aside and the impugned application be subjected to an inter partes hearing.* 56. *THAT the Respondent/Applicant’s intended response raises substantial grounds worthy of judicial consideration, and no prejudice shall be suffered by the Applicant.* 57. *THAT it is in the interest of justice that the ex parte proceedings and resultant orders be set aside and the Plaintiff’s application dated 25.11.2025 be heard afresh and the Applicant be allowed to participate and be heard on the same.* 58. *THAT no prejudice will be suffered by the Respondent if the orders sought are granted* 59. The Respondent raises grounds opposing the Applicant’s application dated 27th November 2025 as follows: 60. *THAT the Applicant has failed to establish a prima facie case to warrant the grant of an order for DNA testing.* 61. *THAT the Application is premised on hearsay allegations unsupported by any affidavit evidence from the Applicant’s mother or any independent corroborative material.* 62. *THAT the Applicant has not produced any documentary proof, acknowledgment, public recognition, or any cogent evidence linking her to the deceased.* 63. *THAT the prayer seeking that the Applicant undertake DNA examination is a prayer in vain, as no comparable or legally admissible DNA sample of the deceased or any proven biological relative has been identified or placed before the Court for purposes of comparison, thereby rendering the intended order futile, speculative, and incapable of practical or scientific implementation.* 64. *THAT DNA testing is a remedy of last resort and the Applicant has not exhausted alternative evidentiary avenues available in law to establish paternity.* 65. *THAT the succession proceedings herein were finalized and the Grant confirmed in 2017, distribution undertaken and rights vested, and reopening the matter would offend the principle of finality in litigation.* 66. *THAT the Application has been brought after inordinate and unexplained delay of over two decades since the deceased’s death.* 67. *THAT the Application constitutes an abuse of the Court process, the Applicant having previously filed and abandoned revocation proceedings which were dismissed for want of prosecution.* 68. *THAT the Application is speculative, oppressive and amounts to a fishing expedition intended to reopen settled succession proceedings without lawful basis.* 69. *THAT the Application is misconceived in law lacks merit and ought to be dismissed with costs.* **Applicant’s Submissions** 1. The Applicant, Edna Chepkoech Tanui, through her submissions dated 15th January 2026, seeks the reinstatement of Succession Cause No. 194 of 1995, which was dismissed for want of prosecution after her previous counsel ceased appearing due to her inability to afford legal fees. Contending that she should not be punished for the mistakes or financial challenges of her prior representation, the Applicant asserts her right to inheritance under Section 76 of the Law of Succession Act and requests leave to file additional evidentiary documents regarding her lineage. Central to her application is a prayer for an order for DNA testing to confirm her biological relationship to the deceased, Kipyego Kogo Chepkwony, arguing that such scientific evidence provides irrefutable proof and offers a more efficient, cost-effective resolution than a full trial involving fallible witness testimony. Ultimately, the Applicant maintains that granting these orders will serve the interests of justice and ensure that the rightful heirs are identified without causing prejudice to the Respondent. **Respondent’s Submissions** 1. The Respondent opposes the Applicant's request for DNA testing on the grounds that the Applicant has failed to establish a *prima facie* basis, relying solely on hearsay without providing a birth certificate, evidence of acknowledgment by the deceased, or an explanation for a 27-year delay. It is further submitted that the order sought is scientifically and legally incapable of implementation because the Applicant has failed to identify a comparative DNA sample from the deceased or a proven biological relative, rendering the request a futile biological exercise without legal consequence. Finally, the Respondent contends that the application is an abuse of the court process and offends the principle of finality, as the deceased died in 1994, the grant was confirmed and the estate distributed in 2017, and a previous revocation attempt by the Applicant was dismissed for want of prosecution in 2024. 2. The substratum of this litigation has been crystalized from the above applications and material evidence in form of affidavits and counter affidavits. It is now my singular duty to put the record straight. **Decision** 1. First and foremost, some of the orders being prayed for in the application dated 27th November 2025 are untenable by dint of *res judicata* under Section 7 of the Civil Procedure Act. In this respect the Court on 5th day of December 2025 addressed some of the issues by making the following declarations: *“That the dismissed succession cause for want of prosecution be reviewed by setting aside the order to revert the dispute into the active docket”.* Therefore, on matters of a suit having been dismissed for want of prosecution to me was an error of fact and law on the face of the record in terms of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The basis being that by the decision of Ogolla J as he then was, this was an active probate case file for the dispute by 2022 was yet to be dissolved with finality. 1. The residual prayer or remedy being sought by the Applicant is on leave for this Court to be granted for purposes of the DNA profile test to establish paternity. **The Law** 1. In succession matters dispute on paternity have come to be the most litigated claims before our Courts. This is a litigation which arises from children born out of wedlock or from void or voidable marriages. Therefore, regarding DNA paternity testing the Courts will only order when a prima facie case has been established under Section 107(1) of the Evidence Act touching on the welfare and best interest of the child which is taken to override adult privacy. The fundamental principles which have found their entry to our legal system include inter alia the following: * **Best Interest of the Child:** Under Article 53(2) of the Constitution, child welfare trumps an alleged parent's right to bodily privacy or dignity in disputed maintenance or custody suits. Therefore, under constitutional and statutory welfare principles a parent right to privacy or bodily dignity cannot be used to block a scientific test if establishing through parentage directly impacts the child’s right to parental care, maintenance and support. (See *ER v MW [2025] eKLR*. * **Threshold of Proof:** A party requesting a court-compelled DNA test must establish an initial basis or cohabitation history; fishing expeditions are routinely rejected. Essentially, Courts will not order DNA testing as a routine matter or as fishing expedition. The standard and burden of proof is vested with the Claimant, Applicant or Petitioner who must lay a firm factual foundation to show that the truth cannot be reached for the Court to make a determination by other reasonable means save for the DNA profile match. (See MKK vs LGI [2021] eKLR. * **Succession Limits:** Posthumous or forced sibling DNA testing to disqualify or qualify heirs is heavily restricted unless a clear foundation of fraud or active denial during the deceased's lifetime exists. * **Inherent discretion:** Courts can order scientific DNA tests if a bonafide well-founded dispute of paternity exists rather than a speculative fishing expedition. * **Infringement of privacy:** An adult’s right to physical integrity and privacy may be justifiably limited as provided under Article 24 of the Constitution to ascertain the truth in the administration of justice. 1. This is what the Courts have said with regard to this issue on DNA testing. Thus: * **MKK v LGI [2021] KEHC 13126:** The High Court stressed that DNA tests should not be ordered as a routine matter of course, setting the test of "eminent need" where the child's welfare supersedes a parent's right against self-incrimination. * **AWM v LNG [2024] KEHC 12128:** The court ordered parties in a Nairobi family case to present themselves to the Government Chemist for a paternity test, affirming that clearing confusion over identity serves the best interest of the minor. * **In re Estate of Benard Njeru Kamau (Deceased) [2025] KEHC 7457:** The High Court ruled that non-consenting adults or surviving relatives cannot be forcefully subjected to sibling DNA profiling to establish beneficiary status in inheritance disputes without exceptional circumstances. 1. Similarly, in *Re Estate Benard Njeru Kamau (Deceased) (Succession Cause 13 of 2022) [2025] KEHC 7457 (KLR),* the Court dismissed an application seeking sibling-to-sibling DNA testing to establish the paternity of children claimed as beneficiaries. The Court emphasized that: * *The deceased’s DNA profile was unavailable.* * *It would be unconscionable to treat one set of children as the unquestioned “baseline” for legitimacy.* * *Even where DNA testing fails, inheritance may still arise through dependency and other statutory avenues.* 1. The Court reaffirmed in that Kenyans succession law adopt a broader approach to defining a child under Section 3(2) of the Law of Succession Act, a child includes: * Any child expressly reorganized by the deceased, or * Any child for whom the deceased voluntarily assumed permanent responsibility. 1. Generally, in child custody, maintenance and paternity disputes, Courts order DNA testing only when there is a prima facie case, an eminent need and it serves the best interest of the child as a paramount consideration. The import of this is manifested in Article 53(1)(e) and (2) of the Constitution which expressly provides that: *(1)Every child has the right:(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.(2)A child’s best interests are of paramount importance in every matter concerning the child.* *13.Similarly, Section 8 (1) and (2) of the*[*Children Act*](https://kenyalaw.org/akn/ke/act/2001/8)*, 2022 provides that:1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (a) the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.2.All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.* 1. This necessity on the best interest of the child arose in *FKW (suing as the mother and next friend of GDW (Minor) v. DMM [2015] eKLR:* *“What all these decisions point to is that where it is in the best interests of the child that a paternity test should be undertaken; where there is no other means of determining the father of a child other than by means of a paternity test and therefore where such a test is necessary in the circumstances and, where, in any event, the applicant has made out a prima facie case for such a test, then a court of law will ordinarily make an order for such a test. Looking at the applicant’s case from this perspective, there is no doubt that it is in the best interests of the subject child that the DNA test should be taken. It is the child’s constitutional right and he is better of growing up with the knowledge of who his parents are. As noted earlier there is no other way of determining who the father of the subject child is apart from conducting a DNA test and therefore this test is necessary in the circumstances of this case.”* 1. It is trite medically and scientifically and in accordance with recognized principles of genetics and the existence of the red blood cells of some individuals contained difference chemical substances from the blood cells of others and that all blood could be classified into a smaller number of groups. This genetic characteristics are transmitted from one generation to another. And thus; *“[A] comparison of the characteristics of a child’s blood with that of his mother and a particular man may show that the man cannot be the father … [and] if it is known that at the material times the mother had had intercourse only with H (her husband) and X and the blood test excludes H but not X, then X must be the father” (Law Commission Report on Illegitimacy (Law Commission 118 par 5.2), cited ibid).* 1. In this context it cannot be seriously disputed that it has been a long litigation involving Edna, the Petitioner Veronica who is the administrator of the estate of the deceased with regard to the paternity of the Objector and her claim to the shares in the intestate estate of the deceased. All things considered, the mother of the child is best suited to tell whether the married or unmarried man out there is in fact the father and one responsible for having fathered the child. One of issues to this kind of disputes is that evidence must be forthcoming from the child’s mother who must necessarily answer the question before a court of law whether the man or the deceased person and owner of the estate being contested is indeed the father of the child. 1. The law on compulsory DNA testing in Kenya is not very clear in absence of legislation regulating the matter and any such disputes have been left to the Courts to make decisions and going through them one cannot miss to appreciate the level of inconsistency either in their findings or on basis upon which tests may have been ordered to be undertaken by the relevant research and scientific institutions with proper institutional capacity to undertake such tests. However all Courts have recognized the need to balance to protect the right to privacy and bodily integrity of those to be tested and the Court’s role to discover the truth where possible so as to exploit scientific means to that end. The majority view taken by Courts within our jurisdiction is that the Court has the power to compel an adult to submit to blood test where it is in the child’s best interest so that clarity is obtained on paternity as the blood test have since established to be a reliable aid or enabler to discerning the truth by way of scientific evidence. 2. It is now well settled in law that in custody, under succession inheritance matters that paternity and legitimacy are twin concepts although they are distinct from the lens of the law. While legitimacy can be determined through a legal presumption, under Section 112 of the Law of Succession Act but paternity is a matter of science. In children disputes, it goes without saying that it is in the best interest of the child to know his or her biological parents. More specifically like the instant case the biological father. The justification being that the child has to know his or her real parentage and the accrued rights emanating therefrom and in our case it is about inheritance rights. In the case of paternity as a concept it is therefore intrinsically connected with dependency which also flow from Section 29 of the Law of Succession Act and maintenance which is claimable from the biological father even though the child is born out of wedlock or for purpose of the law is referred to as illegitimate. 3. I am of the considered view that in this case at hand it hinges on two primary prongs which call on this Court to exercise discretion by undertaking a balancing act on the competing rights of both the Objector and the Petitioner. The analysis is to establish the difference between legitimacy and paternity and consequently the circumstance under which the presumption of legitimacy from the facts of this case can be said to displace paternity. Secondly, it is exercise of balancing of interest and evaluating the eminent need of a DNA test. When the Court speaks of presumption of legitimacy, it means that *he is the father whom the marriage indicates to be so.* Why is that so? Traditionally, both under customary and common law where husband and wife cohabited together and no evidence of impotence was forthcoming from any of the couple and the child begotten during that cohabitation is conclusively presumed to be legitimate notwithstanding that the wife may have been known to be having extramarital affair hence known to be guilty of infidelity. That is indeed the presumption in our judicial underpinning that a child born within the marital relations is legitimate without any question. That is why unless there is compelling evidence any child within the wedlock sphere no DNA test can be ordered to displace that presumption. 4. In the context of this case, our transformative Constitution 2010 outlines rights and fundamental freedoms in its Chapter 4, like other rights which form part of fundamental freedoms protected by this supreme law of the land including the right to life in Article 26 and personal liberty under Article 29, privacy in Article 31 is not an absolute right. However, the Constitution is also clear in Article 24 of the Constitution that a law or a decision which encroaches upon the right to privacy will have to withstand the touchstone of permissible restrictions on fundamental rights in the context of Article 24 of the Constitution. That is a threshold issue which must be tested within the factual matrix of the Objector’s case. It must be noted that the deceased who is alleged to be the father to the Objector has since passed on and any application for orders of exhumation within this sphere may not be capable of being granted by this Court. When dealing with the eminent need for a DNA test to prove paternity as between the alleged siblings of the Objector those interests of those involved must be considered within the provisions of the right to privacy under Article 31 of our Constitution. 1. The DNA profiling being asked by the Objector is provided for under Section 48 of the Evidence Act which expressly states as follows: *Section 48 of the* [*Kenya Evidence Act*](https://new.kenyalaw.org/akn/ke/act/1963/46) *covers the* ***opinions of experts****. It states that when a court needs an opinion on foreign law, science, art, handwriting, or fingerprints, the opinions of people who have special skill in those areas are allowed as evidence. These skilled people are called experts.* As can be seen from this provision, an expert is a person who possesses some special knowledge or skills based on his studies, training or experience. This expert opinion rule as enacted in our Evidence Act is an exceptional legislative sub-structure to our evidentially jurisprudence on matters which cannot be resolved by either direct or circumstantial evidence of a witness. The rationale behind the provision of Section 48 of the Evidence Act is an exception based on the doctrine of necessity which involves questions of facts and law surpassing the scope of common knowledge and the adjudicatory body may it be a Court of law or Tribunal requires the application of science like DNA testing in paternity cases to form a righteous judgment of the dispute. This is a complex area of law together with this admissibility principle for DNA profiling in human beings is an authoritative technique equipped to distinguish and identify people due to its distinct characteristics of human creation or anatomy. 1. In view of this issue of DNA profiling recurring almost in every dispute under the Children’s Act on custody, the Matrimonial Property Act and the Law of Succession Act on inheritance, time has come for a statutory framework which should be a special legislation to ensure modern DNA profile in technology is regulated and employed within the dictates of the Constitution. I have in mind the necessity of procedures on DNA profiling recognized by law and to ensure that the procedure is just, fair and reasonable. This means that the legislative scheme enacted by Parliament should meet the threshold issue within the constitutional format of Article 24 of the Constitution on limitation of rights. 2. Given the above background, historical litigation by the Objector and the denial by the Petitioners and her children that she is a stranger and therefore not a legitimate child born out of any extra marital relationship with the mother of the Objector and the deceased. I hold the view that a child who has not been shown by his or her biological mother the identity of his or her biological father as a constitutional right to know his or her biological roots which can undoubtedly be proven through scientific test and modern technological advancement. I am persuaded in exercising this discretion by the comparative jurisprudence in the case of *Nayaran Dutt Tiwari (2012) 12 SCC 554* in which the Judge made the following observations in respect to this same issue under discussion by this Court: *“…What we wonder is that when modern tools of adjudication are at hand, must the courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. The answer obviously has to be no. The courts are for doing justice, by adjudicating rival claims and unearthing the truth and not for following age-old practices and procedures when new, better methods are available.”* 1. As a consequence of this finding, the following orders shall abide: 2. *That an eminent necessity has arisen for this Court to exercise discretion for a declaration that the DNA profile testing be undertaken by the Government Chemist at Kisumu Branch or in the alternative KEMRI Branch at Eldoret within 45 days from today’s ruling.* 3. *That further the DNA profile be within the cluster of alleged siblings or children of the deceased begotten with the Respondent during the subsistence of their marriage.* 4. *That this declaration has been issued in consonant with Section 48 of the Evidence Act.* 5. *That it must be acknowledged that notwithstanding absence of specific legislation of DNA testing in Kenya the significance of DNA testing technological evidence in the administration of justice in Kenya cannot be underestimated to unravel paternity issues in our litigation landscape on custody and inheritance rights.* 6. *That the costs of this DNA testing shall be met by the Objector in view of the circumstances of this case*. **DATED, SIGNED AND DELIVERED THIS 3RD DAY OF AUGUST 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**