https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10884

In re Estate of Cullen alias John Kiptoo Ngala (Deceased) (Succession Cause 221 of 2010) [2026] KEHC 10884 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEHC 10884 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 221 of 2010 RN Nyakundi, J July 20, 2026 IN THE MATTER OF THE ESTATE JOHN KIPTOO CULLEN ALIAS JOHN KIPTOO NGALA (DECEASED) Between Frank Airo Nyaondo alias Frank Kibitok Applicant and Zaidun Jerobon alias Zaitun Ngala Respondent Ruling 1.Before this Court is Summons for Revocation of Grant dated 8th May 2024, expressed to be brought under Section 76, 45 and 83 of the Law of Succession Act and Rules 44 and Rule 49 of the Probate and Administration Rules Cap 160 Laws of Kenya, Order 40 (1) (2) and (3) of the Civil Procedure Rules 2010, and all other enabling provisions of the law. the Applicant seeks the following orders:a.Spent.b.That in the interim and pending the hearing of the instant Application inter partes, an order of temporary injunction be and is hereby issued to restrain Zaidun Jerobon Alias Zaitun Ngala her agents, servants, employees or whosoever from dealing with the deceased’s movable and immovable properties pending the hearing and final determination of this Application.c.That an order of injunction do and is hereby issued to restrain Zaidun Jerobon Alias Zaitun Ngala from dealing with the deceased’s movable and immovable properties pending the hearing and final determination of the summons filed by the Objector/Applicant dated 8/05/2024d.That the Grant of Letters of Administration issued on 03.06.2011 to Zaidun Jerobon Alias Zaitun Ngala and Confirmed on 23/02/2012 to the same Zaidun Jerobon Alias Zaitun Ngala be and is hereby annulled and revoked.e.That the Proceedings in Nairobi High Court P&a Cause No. 353 Of 1973 - In The Matter Of The Estate Of The Late Ronald Gideon Ngala (deceased) be stayed pending the hearing and determination of this Application on grounds that the Objector/Applicant herein is a direct beneficiary of the estate.f.That Frank Airo Nyaondo Alias Frank Kibitok be appointed as administrator of the deceased’s estate and the estate be administered afresh.g.That the Administratrix; Zaidun Jerobon Alias Zaitun Ngala be and is hereby ordered to render full and accurate accounts for:-i.PLOT NO. 75/1/A Takaungu Also Referred To As L.r. No. 4237 (vol. Lt. 23 Folio 334/17 File 3865) Uhuru Farm-kilifi, Andii.PLot No. Transnzoia/waitaluk/mabonde Block2/machungwa/384.h.That the properties, Plot No. 75/1/a Takaungu And Plot No. Transnzoia/waitaluk/mabonde Block2/machungwa/384 be and hereby declared as part of the deceased’s estate and all registrations of dealings and entries in the register relating to the title after the death of the deceased, that is, from 13.01.2010 be and are hereby declared null and void.i.That the costs of this Application be personally borne by the Petitioner/Respondent. 2.In support of the application is the sworn affidavit of Frank Airo Nyaondo alias Frank Kibito who deponed as follows:a.That I am the Objector/Applicant herein; a child (son) of the deceased; the late John Kiptoo Cullen alias John Kiptoo Ngala (Deceased), hence competent to make and swear this affidavit.b.That since the demise of my father, I have been in communication with the Petitioner/Respondent though she has never informed me of her intention to petition for letters of administration.c.That as per the information within my knowledge, the Grant of representation was fraudulently issued on 03.06.2011 to Zaidun Jerobon Alias Zaitun Ngala who is currently the sole administrator.d.That the said Grant of Letters of Administration was confirmed to the said Respondent on 23.02.2012.e.That it is noteworthy to point out that at the time when the Petitioner/Respondent commenced and took out Letters of Administration of my deceased father’s Estate, I was an adult and that I was never involved and neither was my consent sought. I wish to state that I did not and do not consent to the same.f.That upon perusal of the Petition, the Grant was applied through a Death Certificate issued on 29.01.2010 and a letter from the Chief Kaptumo Location issued on 25.06.2010.g.That from the said letter of the chief, the sole beneficiary to the estate enlisted is:- i. Zaidun Jerobon;h.That further, the only properties listed in the application for grant of representation are PLOT NO. 75/1/A Takaungu (uhuru Farm-kilifi) And Plot No. Transnzoia/waitaluk/mabonde Block2/machungwa/384.i.That on 02.02.2012, the law firm of Terer and Company Advocates was appointed by the Petitioner/Respondent to make an Application for the Confirmation of Grant.j.That in the said Application, the Respondent herein has sworn an Affidavit indicating that she intends to sell the properties to off-set some outstanding liabilities of the initial estate of the late Ronald Gideon Ngala (deceased).k.That the above-mentioned matter (Nairobi High Court P&a Cause NO. 62 OF 1973) relates to the Estate of our grandfather, who was Polygamous and in which I intend to make a similar Application of Revocation for the same since material facts pertaining to the rightful beneficiaries were concealed.l.That from the foregoing circumstances, I pray that the matter Nairobi High Court P&A Cause No. 62 OF 1973 be stayed since the estate is about to be distributed to my exclusion yet I am a direct dependant of the Estate.m.That as is arising from hereinabove, the list of beneficiaries supplied contains the Petitioner/Respondent only despite there being rightful beneficiaries of the said Estate in accordance with Section 29(a) of Law of Succession Act.n.That the rightful beneficiaries of the deceased for instance myself; the Objector/Applicant herein, being a son of the deceased, was not mentioned in the Petition and Application for Confirmation of Grant and I was thereby fraudulently disinherited.o.That in addition to the properties listed in the Petition, my deceased father had other properties located in, Nairobi County, in Mombasa County and Kilifi County in which he was a direct and rightful beneficiary and so am I.p.That the deceased left behind the following properties:i.Plot No. 75/1/a Takaungu (uhuru Farm-kilifi)Ii.Plot No. Transnzoia/waitaluk/mabonde Block2/machungwa/384Iii.L.r. No. 1149/297/block X (cr No. 10133) Buxton Road Near Nyali BridgeIv.L.r. No. 209/402/5 Along Hekima Gardens Off Ngong RoadV.Mariakani FarmVi.Kaloleni EnterprisesVii.Cash As Was Held By The Public Trustee.q.That the Petitioner/Respondent herein has indeed been administering all of the deceased’s estate and properties at her pleasure and will, despite listing only two properties in the Petition.r.That despite formal Demand and Notice from my Advocates to render full and accurate accounts, the Respondent has declined and/or ignored or neglected to comply contrary to Section 83 of the Law of Succession Act.s.That it is clear that the Respondent has since been wasting, misusing and/or intermeddling with the estate’s properties.t.That it is clear that the Respondent also intentionally withheld information regarding the ownership and shares of property known as Title No. LT.49 FOLIO 259, File 15272 (L.R. No. 4237/77) measuring approximately 302 Hectares from this Court and in which the deceased is listed as a Trustee and also a beneficiary with 5.2% shares.u.That under the circumstances, I need not say more that, the Grant was obtained by the false pretenses and concealment of material facts since the Petitioner/Respondent failed to disclose important information.v.That I was not requested to give my consent to lodge the Petition despite me being an adult.w.That from my own knowledge the Administrator has not administered the estate faithfully and cannot be relied on to administer the estate to benefit me and it is therefore necessary that I, Frank Airo Nyaondo Alias Frank Kibitok, be appointed as the administrator.x.That it is in the interest of justice that the Orders sought in this Application be granted.y.That in view of the above it is only imperative that the Grant issued on 06.06.2011 and Confirmed on 20.02.2012 be set aside and a new Grant be issued as proposed in this Application 3.Besides the Objector’s evidence which was both oral and tested under cross examination, he also summoned the following witnesses who also filed their respective affidavits and also took the witness box in which they were cross examined on the veracity and truthfulness of the evidence so far deponed on oath as to the facts in issue with regard to the two applications by the Objector. 4.First witness in that line of evidence happened to be Mohamed Kiplagat Said who swore an affidavit and went further to depone as follows which also is evidence in chief before this Court:a.That I am the Objector/Applicant’s grandfather having been a younger brother to the Objector/Applicant’s grandmother.b.That I knew Frank Airo Nyaondo, the Objector/Applicant from when he was a young boy. I also know his mother who gave birth to the Objector/Applicant immediately after school in Kipkenyo-Simat.c.That I also know the Respondent herein very well. This is because the Respondent and the deceased lived with me for some time in my mother’s house at Kaptumo. I am still neighbors, up to date with the Respondent who constructed her house next to my house. Before the death of John Kiptoo Cullen alias John Kiptoo Ngala, he had also constructed a house 200 meters across the road from me.d.That currently the Respondent has a tenant in the deceased’s house where she collects rent monthly to the detriment of the legal heir to the estate.e.That I do remember in early 2008 when the deceased, John Kiptoo Cullen alias John Kiptoo Ngala came to my house to officially introduce to everyone his son, the Objector/Applicant herein. The Respondent acknowledge him all through only to change after the demise of John Kiptoo Cullen alias John Kiptoo Ngala. I know for a fact that the Objector/Applicant, visited the Respondent severally at her house and also at her place of business at Kaptumo centre.f.That the late John Kiptoo Cullen alias John Kiptoo Ngala used to run a hotel at Kaptumo where the Objector/Applicant used to assist a lot during his school holidays alongside a young waiter called Isaac.g.That other than the hotel, the deceased also had tractors that he used for business in the local community cultivating peoples’ farms for money. The deceased also owned a Nissan saloon car, a Toyota pickup alongside the tractors, which the Respondent sold after the demise of John Kiptoo Cullen alias John Kiptoo Ngala.h.That I remember during the interment of John Kiptoo Cullen alias John Kiptoo Ngala, everyone from the family was present including the Respondent and the Objector herein.i.That I remember for a fact, immediately after the burial and during the family gathering, the Respondent specifically told the Objector in my presence and that of other family members, that during the school holiday, the Objector should travel back to Kaptumo to discuss on the way forward about the deceased’s property.j.That on the 40th day after the burial, since the deceased was a Muslim, the deceased’s step sisters from the Coast came to participate in the Islam ritual called the arobaini and we all mingled. I can also confirm for a fact that, after the ritual, the Respondent and the Objector escorted the step siblings to Kapsabet in the same vehicle. 5.The second witness in that line of evidence happened to be Chemngok K. Phillip who deponed as follows:a.That I am the Chief at Pioneer Location, Kapseret Sub-County in Uasin Gishu County.b.That I knew John Kiptoo Cullen alias John Kiptoo Ngala, the deceased, who resided in my area and who was also a personal friend.c.That I am familiar with Frank Airo Nyaondo, the Objector/Applicant herein who is also well known to me because he was born and raised in my area, together with his biological mother Hellen Jepkorir Nyaondo.d.That I know the deceased was the biological father of the Objector/Applicant herein because I knew him for many years including Hellen Jepkorir Nyaondo; however, the two never got married.e.That by this affidavit, I also confirm that the deceased, John Kiptoo Cullen alias John Kiptoo Ngala grew up in Kipkenyo village way back in the 1980s which is also my home area. He later moved to the coast where he also lived with his step brother for some time and in 2006 he moved to Kaptumo.f.That I swear this affidavit to confirm the deceased, John Kiptoo Cullen alias John Kiptoo Ngala and Hellen Jepkorir Nyaondo are persons who are very familiar to me and I know for a fact that the Objector/Applicant herein, Frank Airo Nyaondo is their son. 6.In third witness in that line of evidence happened to be Hellen Jepkorir Nyaondo who deponed as follows:a.That the deceased, John Kiptoo Cullen alias John Kiptoo Ngala was the biological father of the Objector, Frank Airo Nyaondo alias Frank Kibitok. This I can confirm for a fact since I am the Objector’s biological mother.b.That I first met the deceased, John Kiptoo Cullen alias John Kiptoo Ngala, in 1986 when I was a clerk at a maize buying center where he used to sell maize.c.That I Courted the deceased for some time and later gave birth to the Objector herein in March of 1989. That the deceased, John Kiptoo Cullen alias John Kiptoo Ngala, always lived in Eldoret, in Kipkenyo Simat.d.That in September of 1989, I got employed by KPLC and taken on transfer to Kabarnet in December, 1990. John Kiptoo Cullen alias John Kiptoo Ngala, moved to Nairobi but we kept in touch through letters. In 1992, he came back to Eldoret with a marriage proposal.e.That in 2008, John Kiptoo Cullen alias John Kiptoo Ngala took Frank Airo Nyaondo alias Frank Kibitok to Kaptumo to meet the rest of the family members from John’s side. After this time, Frank Airo Nyaondo alias Frank Kibitok, would visit Kaptumo every time he was on school holidays.f.That in 2010 when Frank Airo Nyaondo alias Frank Kibitok had just resumed school from long holidays, he got a call from Mbarak Said, an uncle to John Kiptoo Cullen alias John Kiptoo Ngala, who later told him that his father, John Kiptoo Cullen alias John Kiptoo Ngala, had just died and that he would make arrangements for Frank Airo Nyaondo alias Frank Kibitok to attend the burial.g.That Frank Airo Nyaondo alias Frank Kibitok was able to travel for the burial of his father but I was however unable to travel due to work commitments. I was able to go pay my respects a few days later. Frank Airo Nyaondo alias Frank Kibitok and his cousin, one of the Respondent’s sons came to pick me up from the bus stage. When it was time to leave, Zaitun Jerobon alias Zaitun Ngala and her sons together with Frank Airo Nyaondo alias Frank Kibitok saw me off. Zaitun Jerobon alias Zaitun Ngala openly affirmed the Objector herein that they should sit and discuss succession matters of his late father’s estate.h.That Zaitun Jerobon alias Zaitun Ngala started frustrating the Objector herein after the rituals conducted after 40 days. When the frustrations were taking a toll on Frank Airo Nyaondo alias Frank Kibitok, I asked for the Respondent’s number to try and talk to her but immediately I introduced myself, the Respondent, Zaitun Jerobon alias Zaitun Ngala, disconnected the call.i.That by now, the Respondent, Zaitun Jerobon alias Zaitun Ngala had already started selling of the deceased’s movable assets. 7.In fourth witness in that line of evidence happened to be Saida Jepkoech Said who deponed as follows:a.That the deceased, John Kiptoo Cullen alias John Kiptoo Ngala was my first cousin.b.That I remember for a fact, the deceased, John Kiptoo Cullen alias John Kiptoo Ngala, whenever he visited the homestead in Kaptumo, he always told us that he had a son in Eldoret and that he would one day introduce him to all of us. At the time, the Respondent herein and my family used to live in the same homestead where we were all housed by Amina Chemaiyo Said who was our grandmother.c.That all this while, the deceased, John Kiptoo Cullen alias John Kiptoo Ngala and the Respondent herein, used to discuss about the Objector and I can confirm for a fact that she knew the Objector even before officially meeting him in person in 2008 when the deceased, John Kiptoo Cullen alias John Kiptoo Ngala, officially introduced Frank Airo Nyaondo to all of us.d.That before the introduction in 2008, the deceased, John Kiptoo Cullen alias John Kiptoo Ngala used to leave in Eldoret with our relative Salah then after some time he traveled to Mombasa where at some point he lived with his step brother trying his hand in business.e.That I remember for a fact as a witness, that the Objector and the Respondent became fond of each other because I used to spend a lot of time with Frank Airo Nyaondo whenever he visited Kaptumo. Whenever I used to see him off, we would pass by all our relatives households greeting them including the Respondent’s house where she would give the Objector bus fare/pocket money in the open.f.That I can also confirm that Zaitun Jerobon alias Zaitun Ngala’s children know the Objector/Applicant herein. Before the deceased’s house, John Kiptoo Cullen alias John Kiptoo Ngala was completed, the Objector in late 2008 used to sleep with Kassim Kiplagat, one of the Respondent’s son, on the same bed. That the Objector herein is a group Administrator in a family WhatsApp group where all of us, including the Respondent and her children, are active participants.g.That in the last few weeks when the late John Kiptoo Cullen alias John Kiptoo Ngala was critically ill, he used to be brought to our house which was more centrally located between the Respondent & her place of business and the mosque because we could conveniently take care of him. The Objector herein I remember came to be with his late father in the last 3 days before his demise where we all spent time together including with the Respondent, Zaitun Jerobon alias Zaitun Ngala.h.That I remember during the burial of John Kiptoo Cullen alias John Kiptoo Ngala, the ceremony was delayed in order to allow the Objector, who is the only son of the deceased, to participate in the burial rights.i.That I also remember after the burial, Zaitun Jerobon alias Zaitun Ngala sold the deceased’s movable properties that included a saloon car, a pickup and two tractors. 8.In the same vein, the same Applicant moved the Court in the motion dated 26th day of March 2025, expressed to be brought under Article 159 (2) of the Constitution, Section 47 of the Law of Succession Act, rules 63 and 73 of the Probate and Administration Rules, Sections 1A and 3A of the Civil Procedure Act and all other enabling provisions of the law. The applicant seeks the following orders:a.That the Honourable Court be pleased to order that the grave of John Kiptoo Cullen alias John Kiptoo Ngala (Deceased) situated at Kaptumo mosque within Nandi County be opened to exhume his remains so that samples may be taken for purposes of conducting Deoxyribonucleic Acid (D.N.A) tests to effectually and definitively determine paternity/the existence of any generic relationship with the Objector/Applicant.b.That the Honourable Court be pleased to direct Kenya Medical Research Institute or any other credible institution to undertake the disinterment and do obtain the necessary samples from the remains of the late John Kiptoo Cullen alias John Kiptoo Ngala for purposes of conducting the said Deoxyribonucleic Acid (D.N.A) tests.c.That the Honourable Court be pleased to direct Kenya Medical Research Institute or any other credible institution to undertake a Deoxyribonucleic Acid (D.N.A) test-comparing the DNA profile of the deceased against the samples provided by the Objector/Applicant.d.That the Honourable Court be pleased to issue any further Orders that it deems necessary for the determination of the existence of any generic relationship/paternity between the deceased and the Objector/Applicant.e.That Parties be at liberty to conduct their own Deoxyribonucleic Acid (D.N.A) tests.f.That the costs of this Application be in the cause: 9.The application is based on the following grounds:a.The Objector/Applicant is the biological son of the deceased.b.The Objector/Applicant was known as a son of the deceased by family, neighbors, and friends including the Petitioner/Respondent.c.Unfortunately, the Petitioner/Respondent neglected and/or refused to acknowledge the Objector/Applicant as a child of the deceased upon his death.d.The Objector/Applicant is entitled as a biological child to inherit from his father's estate.e.The Objector/Applicant is apprehensive that the Petitioner/Respondent has excluded him from the affairs of the estate and for the Objector/Applicant to assert and secure his rights there is need to conclusively establish paternity.f.The Objector/Applicant has no known living and undisputed siblings and as such, the only way to establish a nexus between the deceased and himself is by undertaking a paternity test.g.The paternity of the Objector/Applicant is integral to this suit and it is in the best interest of justice to have any doubts about the Objector/Applicant's paternity resolved and put beyond doubt by the best evidence.h.It is therefore necessary that samples be taken from the deceased upon exhumation to conduct a DNA test in relation to the Objector/Applicant.i.That in the circumstances the Orders sought ought to be granted. 10.In support of the application is the annexed affidavit of Frank Airo Nyaondo who deponed as follows:a.That I am a citizen of Kenya and an adult male of sound mindb.That I am the biological son of the deceased herein having been born on 17th March1989 following a romantic relationship between the deceased and my mother Hellen Nyaondo.c.That my father (the deceased herein) passed on in 2010 after which the Petitioner/Respondent obtained a Grant of Letters of Administration Intestate issued on 6th June 2021.d.That unfortunately the Petitioner/Respondent did not include me as a beneficiary of the Estate and it is currently being distributed to my disadvantage.e.That before my father (the deceased) met his demise; he had introduced me to family, including the Petitioner/Respondent, friends and neighbours; all of whom acknowledged me as his son.f.That after the said introductions, and during the period which my father was alive, the Petitioner/Respondent acknowledged me as the deceased's son.g.That the Petitioner/Respondent only slopped acknowledging me as the deceased's son after the deceased met his demise.h.That I have adequately demonstrated the nexus between myself and the deceased via my Affidavit in support of the Petition for Revocation of Grant sworn on 8th May 2024and the Affidavits of my 6 witnesses filed thereafter.i.That I deem it fit to conclusively and certainly determine my paternity through the best scientific evidence available.j.That I am the only child to the deceased and as such I do not have the option of determining paternity by comparing my DNA with that of the deceased's other known, living and undisputed children.k.That I am advised by my counsel on record, which advice I verily believe to be true, that a kinship analysis would not conclusively determine my paternity, and as such it is necessary to exhume the deceased to conduct a DNA paternity test.l.That in light of the above, there are adequate exceptional and compelling circumstances to warrant the exhumation of the body of the deceased to determine my paternity conclusively.m.That for justice to be served the truth needs to be discovered through scientific methods that are conclusive and certain; otherwise I stand to be forever disinherited.n.That it is in the best interest of justice to have any doubts about my paternity be resolved and put beyond doubt by the best scientific evidence. 11.In answer to the motion on revocation and exhumation of the deceased’s body for purposes of DNA test the Respondent Zaidun Jerobon Alias Zaitun Ngala had this to say in her Affidavit dated 30th April 2025 which she deponed as follows:i.That I am the biological sister and sole beneficiary of the late John Kiptoo Cullen alias John Kiptoo Ngala the deceased herein who passed away on 13th January, 2010 and am competent to swear this affidavit.ii.That I have read and understood the full purport of the Objector/Applicant Notice of Motion Application supported by the sworn Affidavit of FRANK Airo Nyaondo Alias Frank Kibitok executed on 26th March, 2025 and Supporting Affidavit sworn on even date and where necessary I have consulted and been accordingly advised my Advocate on record, and wish to vehemently oppose the same for reasons set out herein.:iii.That the Applicant lacks locus standi to seek exhumation, as he is neither the legal personal representative, next of kin, nor an authorized agent of the Deceased under Section 146(2) of the Public Health Act as his claim of paternity remains unproven.iv.That the Applicant has failed to adduce credible evidence to establish a prima facie case of paternity. Indeed, he has not produced a birth certificate, National Identity Card, or passport linking him to the Deceased and as such his claim rests solely on speculative and self-serving allegations.v.That the evidence of these documents would have probably proved the closeness of the deceased to the applicant a fact that might raise the presumption of his paternity.vi.That further, the objector/applicant through his pleadings and the oral testimony of his witnesses has failed to establish sufficient nexus between him and deceased to warrant the granting of the orders of exhumation to conduct a Deoxyribonucleic Acid (D.N.A) test.vii.That the witnesses presented by the Applicant are not impartial and cannot corroborate paternity without independent documentary or scientific evidence. As such, their testimonies are contrived and lack probative value.viii.That I am advised by my advocates on record whose advice I believe to be true that Sections 107, 108 & 109 of the Evidence Act Cap 80 mandates that he who alleges must prove.ix.That the Applicant’s reliance on oral testimony alone contravenes Section 107 of the Evidence Act, which mandates that he who alleges must prove. His failure to discharge this burden warrants dismissal.x.That for instance, despite the repeated question on birth certificate, National Identity card and/or Passport during the hearing the Applicant has failed to produce the said documents.xi.That indeed this conduct only leads to one conclusion, that is, the Objector/Applicant has selectively and conveniently left out the said documents.xii.That the Applicant’s conduct violates the principle of uberrima fides (utmost good faith) required in succession matters. As such, his concealment of critical documents such as the birth certificate warrants dismissal.xiii.That further, the Applicant has conveniently brought the application after having testified and also calling several of his witnesses who have been cross examined.xiv.That I am advised by my advocates on record whose advice I believe to be true that, allowing the Applicant’s exhumation now would unfairly permit him to fill presumed gaps in his failed case, which he may imagine to have arisen in his case after evidence-in-chief and cross-examination of his witnesses.xv.That the Applicant filed this application 15 years after the Deceased’s burial, a delay that is both inordinate and inexcusable.xvi.That the Applicant’s belated application is a tactical maneuver to prolong litigation as no plausible explanation has been given for the 15-year delay, which violates the principle of laches.xvii.That no justifiable explanation has been tendered by the Applicant for these successive delays.xviii.That indeed if there was any serious and/or legitimate need for the conduct of DNA tests, the Application would have been brought it timeously and much earlier in the proceedings, not at this late stage.xix.That I am advised by my advocates on record whose advice I believe to be true that this Honourable Court ought to take judicial notice of the debatable view that, unless very well preserved, samples taken from the body of a deceased person who died a substantially long period of time ago, due to such long passage of time, and owing to the natural process of bodily degeneration, may not even necessarily be still capable of providing fit samples for proper and/or accurate DNA test.xx.That this observation was made and acknowledged by the Court of Appeal in the case of E. M. M Vs I. G. M and Another (2014) eKLR, where the Court stated as follows: “*Turning to ground No. 3 on the DNA evidence, learned counsel submitted that the trial judge erred in relying on the DNA evidence whilst it had credibility gaps and was not conclusive. It is common ground that when the remains of the deceased were disinterred for DNA testing for purposes of determining whether the appellant was a biological son of the deceased, Mr. John Kimani Mungai, the forensic expert at Government Chemist could not generate DNA profiles from the remains, due to degradation of the samples over time. The remains were sent to South Africa, where again it was confirmed that DNA samples could not be extracted.xxi.That even if exhumation were ordered, the advanced state of bodily decay would likely produce no usable DNA, rendering the exercise an affront to the Deceased's dignity.xxii.That considering the inordinate delay by the Applicant to act as cited above, exhumation and/or taking of samples from the body of the deceased at this belated stage would allow this Honorable Court to sanction a futile exercise.xxiii.That further allowing the Applicant's application at this stage would not only be demeaning and degrading to the entire family of the deceased but shall also awaken long-healed traumatic experiences and also unnecessarily torture all concerned.xxiv.That the Applicant's insistence on exhumation disregards scientific reality and judicial precedent, which prioritize practicality and respect for the deceased.xxv.That from time immemorial it has been the natural desire of most men that after their death, their bodies should not only be decently and reverently interred but should also remain in the grave undisturbed. As such a Court should be slow to order disinterment of a body unless and in desirable circumstances.xxvi.That additionally the granting of the order of exhumation would be an infringement on the deceased's dignity after death and would forego the right of his body to remain interred in line with his customs.xxvii.That the Deceased was a devout Muslim whose burial rites strictly prohibit exhumation. Disturbing his remains would violate Article 32 of the Constitution, which guarantees freedom of religion.xxviii.That Islamic law and tradition hold that a body, once interred, must rest undisturbed. Granting this application would irreparably desecrate the Deceased's dignity and offend communal religious sensibilities.xxix.That exhumation would inflict profound psychological trauma on my family, reopening wounds from the Deceased's prolonged illness and death. As such, I pray that this Honourable Court prioritizes the living family's emotional well-being over speculative claims by the Applicant.xxx.That since the objector/applicant filed the summons for revocation of grant dated 8th May, 2024 I have vehemently denied his existence and the Applicant is therefore fully aware, since the commencement of his actions, what evidence he would need to compile and present to the Court to prove his case.xxxi.That I am advised by my advocate on records whose advise I believe to be true that Section 146 (3) of the Public Health Act mandates the cabinet secretary to grant the permit to exhume a body.xxxii.That am adequately advised by my advocate on record whose advise I believed to be true that section 146 (2) of the Public Health Act further provides that a permit to exhume shall be granted only to the legal personal representative or next of kin of the person buried or to his or their duly authorized agent.xxxiii.That the Objector/Applicant is not a legal representative of the deceased neither did the deceased put him anywhere as a next of kin a fact that was confirmed by the Applicant /Objector during his oral testimony in Court.xxxiv.That as such the Objector/Applicant lacks the requisite locus standi desirable to move this Honourable Court to grant the discretionary order of exhumation to conduct a Deoxyribonucleic Acid (D.N.A) test.xxxv.That further, exhumation entails substantial financial implication which may result in undue financial constraints on me.xxxvi.That in the interest of justice, equity, and respect for the Deceased's memory, this Honorable Court must dismiss the application with costs to deter frivolous litigation.xxxvii.That in light of the foregoing, the Objector/Applicant's application lacks merit and should be dismissed with costs. 12.In this respect, the second witness to the summons for revocation and exhumation of the body of the deceased Jacob Murgor Keter who deponed as follows:a.That I am a retired chief of Kaptumo location.b.That before my retirement I served as a chief of Kaptumo location from 1988 to 2007.c.That before becoming the area chief at Kaptumo Location, I was an assistant chief of Mosombor/Ibanja sub-location.d.That having served in the aforementioned positions for 21years, I know the Respondent herein and the deceased as they were residents of Kaptumo village.e.That in my tenure as Chief, I came to know of the Respondent through Said Mbarak who was a village elder of Kaptumo Village, and grandfather to the Respondent.f.That Said Mbarak informed me of the demise of the Respondent’s mother that had rendered her together with her children homeless and as such he voiced his intention to give the Respondent a share of his land at Kaptumo.g.That this was not well received by the elder son Said Kiplagat as he resisted his father’s wish to allocate a share of his land to the Respondent and her children to use as a home.h.That I summoned the village elders/menfolk of the village for purposes of holding discussions around Said Mbarak’s intention.i.That during the discussions, Said Mbarak informed the elders of his intention and it unanimously agreed amongst his peers (elders) in my presence that it was fair and just to give his granddaughter the said share of land as she had nowhere else to go.j.That it was also agreed that due process be commenced and followed to the latter to ensure that the subdivision of Said Mbarak’s parcel was done and the sub-divisions duly registered, respectively.k.That the foregoing was observed and the Respondent later built her home on her parcel of land.l.That after about five years, John Cullen Kiptoo managed to get employment at China Wuyi which company had been contracted to construct Kipsikak-Kaptumo-Shemakoko Road as a driver.m.That for this reason, John Cullen Kiptoo relocated to Kaptumo Center where he rented a house.n.That as at the time of my retirement in 2007, John Cullen Kiptoo was still working for China Wu Yi.o.That he met his demise on 13th January, 2010.p.That at all these material times, John Cullen Kiptoo was not married and as such, he had no wife neither do I know that he has a son. 13.Finally, one Salim Kiplagat Said also averred with regard to the opposition to the revocation for summons for grant and asserted as follows:a.I am a maternal uncle to the Respondent herein.b.That the Respondent herein is a daughter to my sister and the deceased is a son to my sister.c.That Respondent’s mother used to stay with us in Kaptumo before she secured a job in Nairobi and then got married.d.That when she left to look for work in Nairobi the Respondent and the deceased were left with the Grandparents (my father).e.That I remember for a fact that the Respondent’s mother after getting married came back for the children and left with them to Nairobi.f.That the Respondent’s mother then relocated to Mombasa with the children and lived there until 1972 when the husband (the late Ronald Ngala) passed on.g.That as a consequence, life was not bearable and the Respondent’s Mother together with the children left Mombasa for Majengo (near Kisumu).h.That after about a year, the Respondent’s mother left for Kitale in the company of John Cullen Kiptoo.i.That the Respondent’s mother enrolled John Cullen Kiptoo to Sirende Primary, and thereafter Manor House Secondary School.j.That at this material time, the Respondent was residing in Nandi with the grandmother and which area she also underwent her studies.k.That the Respondent’s mother met her demise in Kitale and we left Nandi to collect her body after which we headed to her father’s home at Kaptumo where we buried her as per Muslim rites.l.That after the burial, John Cullen Kiptoo left Kaptumo to prospect for gainful employment/work whereas the Respondent remained there.m.That John Kiptoo Cullen was lucky enough and got employed as a driver of a matatu for about a year by my cousin.n.That he thereafter came home to my uncle at Kipkenyo, Uasin Gishu, where I was residing and farming on my uncle’s land.o.That upon John Cullen Kiptoo coming home, we begun to work together at my uncle’s farm.p.That at all these times, John Cullen Kiptoo was not married and I do confirm that indeed he never had a wife.q.That for about a year we worked at my uncle’s farms at Kipkenyo and Kipkaren Salient after which I left for another job and National Cereals and Produce Board at Mosoriot.r.That during this time I used to make regular visits to my uncle’s farms and on which visits I always met John Cullen Kiptoo.s.That I worked at National Cereals and Produce Board for 8 years before I retired and left for home at Kaptumo where I sought for a construction job at China Wu YI Company as a driver in 2003.t.That within my first year at CHINA WU YI, John Cullen Kiptoo also joined the same company as a driver and once again we were colleague working together.u.That at this point, John Cullen Kiptoo was residing at Kaptumo Center while engaged at the said Company until he met his demise.v.That up until John Cullen Kiptoo met his demise in 13th January, 2010, he was not married and as such never had a wifew.That further at all material time during his lifetime he never told me has a son. Analysis and Determination Background 14.On 25th of June 2010 the Office of the Chief Kaptumo Location in his letter of introduction stated as follows:The Deputy RegistrarHigh Court of Kenya at EldoretO. Box 141EldoretDear Sir/MadamREF: The Late John Kiptoo Cullen I.D. NO. 4xxxx09This is to confirm and certify that the above named was a resident of Ibanja Sub Location, within Kaptumo Location.He died on 13/01/2010 as per IP No. 327/10. Zaidun Jerobon ID No. 1xxxx91 aged 52 year is the Only surviving sister and next of kin to the deceased. She is the Only beneficiary/heir to the Estate of the deceased.Yours faithfullySigned By:David K. RotichChief Kaptumo Location 15.From this letter a petition was filed on 4th October 2010 and thereafter grant of letters of administration vide gazette No. 2738 dated 18th March 2011 for Cause No. 221 of 2010 in favour of Zaidun Jerobon Alias Zaitun Ngala of P. O. Box 86, Kapcheno in Kenya, the deceased’s sister, for a grant of letters of administration intestate to the estate of John Kiptoo Cullen alias John Kipto Ngala who died on 13th January 2010. What follows was a grant of letters of administration intestate dated 6th June 2011 with the following declarations:Be It Known that on 3rd June 2011 Letters of Administration Intestate of all the Estate of John Kiptoo Cullen (also known as John Kipto Ngala) deceased late of Kaptumo who died domiciled in Kenya on the 13th January 2010 at Kapsabet District Hospital which b law devolves to and vests in his personal representative were granted by this Court to Zaidun Jerobon Alias Zaitun Ngala of P. O. Box 86, Kapcheno they having undertaken faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do.Issued by the High Court through the registry at Eldoret this 6th day of June of 2011. 16.Soon thereafter confirmation of grant proceedings was held before the session Judge Mshila and on 23rd February 2012 a corresponding certificate of grant was issued with the following details on inheritance:Name Description of property Share of heirsZaidun Jerobon alias Plot No. 75/1/A Takaungu 5.6% thereof Zaitun Ngala Plot No. Trans Nzoia/Waitaluk ½ undivided share thereof. 17.This certificate of grant of confirmation has turned out to be the contestation and battleground on inheritance as between the Objector and the Petitioner/Respondent. The first question to be answered by this Court is whether the Objector Frank Airo Nyaondo has met the test or the standard and burden of proof to be brought within the class of inheritance legitimately so clustered under Section 29 of the Law of Succession Act. 18.In this respect, Learned Counsel Kelvin Roberts for the Objector gave his legal perspective in which he persuaded this Court that the Objector is a biological child of the deceased and therefore a Dependent as known in law with superior rights over the estate of the deceased other than the Petitioner. It was Learned Counsel’s contention that the evidence on legitimacy that the Objector is a biological son of the deceased is proven by the certificate of birth annexed to the material evidence admitted before this Court during the trial. According to Learned Counsel’s submissions during the making of the grant in favour of the Petitioner/Respondent there was material nondisclosure of exclusion from the inheritance rights by the Petitioner/Respondent and as a consequence of which there was violation of rights which the Court is under duty to redeem so that the Objector does not suffer irreparable loss. Learned Counsel further submitted that the conflicting evidence from both the side of the Objector and the Petitioner is that one party is denying existence of the truth and in this respect it happens to be the side of the Petitioner/Respondent. 19.The issue of revocation of the making of the grant is now well settled as adverted to by Learned Counsel for the Objector in reliance to the following authorities: Re Estate of Habel Karobia Thumi (Deceased) [2025] KEHC 16186 (KLR), The Estate of Peter Murava Chege Alias Murava Chege (2019) eKLR as cited in Mutahi & Another v Mutahi & 3 Others [2025] KEHC 3044 (KLR), Joseph Waitiki Ndegwa & Another v Duncan Nderitu Ndegwa & Another [2007] KECA 502 (KLR), Kihara V Kimani [2023] KECA 1168 [KLR], Samuel Wafula Wasike v Hudson Simiyu Wafula CA No. 181 of 1993 (Unreported), Zipporah Wanjiru Mwangi v Zipporah Wanjiru Njoroge [2017] KECA 519 [KLR], Matei Julius Mulili Ndeti & Nzioki Mulili Ndeti & Another [2022] KECA 150 [KLR] Re Estate of Wahome Mwenje Ngonoro [2016] eKLR, Kadzo Charo v Alex Nzai Dzombo [2019] KECA 377 (KLR) & Veronica Njoki Wakagoto (Deceased) [2013] eKLR. 20.In a nutshell Learned Counsel contended that the Objector has demonstrated on a balance of probabilities fore the certificate of grant of confirmation to be revoked under Section 76 of the Law of Succession Act. He went further to invite this Court that it should the courage by application of the law to order for exhumation of the remains of the deceased’s body so that DNA samples can be extracted for the paternity test to be conducted so as to settle the Objector’s rights under Section 29 of the Law of Succession Act with finality. 21.On the other hand, the Respondent’s Learned Counsel was of a different view in which he submitted that the Objector has not discharged the burden of proof that he was a legitimate dependent of the deceased in view of the overwhelming evidence that the deceased in his life and style lived a single life without a wife legally or illegally married or even who falls under the doctrine of presumption of marriage. It was learned Counsel’s strong contention that the issue of DNA test does not even arise for there is no prima facie evidence of a first-degree biological nexus or second degree of consanguinity and affinity between the Objector and the Deceased. In buttressing his legal arguments to oppose both remedies being sought by the Applicant Learned Counsel placed reliance in the following authorities: High Court at Homa Bay Miscellaneous Civil Case E030 of 2022 Maureen Akumu Milanga versus Hon. Attorney General, The High Court at Naivasha Miscellaneous Civil Application E067 of 2025 Wariuru & 2 Others v Waruiru & 5 Others [2025] KEHC 12638 [KLR], In the High Court at Nairobi [Milimani Law Courts] Petition 18 of 2013 R.M.K V AKG & ANOR [2013] eKLR, In the High Court at Bomet Succession Cause E047 of 2023 – In Re Estate of Kipkobel Arap Misoi (Deceased) [2025] KEHC 14753 KLR, In the High Court at Eldoret succession Cause 387 of 2012 Re Estate of MKK (Deceased) 2024 KEHC 13494 [KLR], In Re Estate of John Samwel Gachuma Mbugua (Deceased) 12023 KEHC 25409 [KLR], Nairobi in Civil Appeal 114 of 2012 E.M.M V I.G.M & Another [2013] KECA 37 (KLR), R.N.C and 2 Others vs S.M.G. [2017] eKLR, In the High Court of Kenya at Meru Succession Cause No. 499 of 2015 in Re Estate of Julius Kiragu Kiara (Deceased) [2- [2018] KEHC 8612 (KLR). 22.The perspective of Learned Counsel for the Respondent is that no sufficient evidence has been adduced by the Objector to warrant him to be recognized as a biological child of the deceased or capable of having maintained during his lifetime. He therefore does not qualify as a dependent or a legitimate heir to rightfully so benefit from inheritance right which accrue from that intestate estate. 23.I have considered the entire scope of the applications and material evidence for and against and as further tested during cross-examination and re-examination by both counsels to establish whether there is doubt in the allegations being made by the Objector to these proceedings. 24.In civil and probate cases, the burden of proof rests on the party making the assertion or the claim to the dispute. This means that the standard of proof in Kenya is strictly determined by a balance of probabilities or preponderance of evidence. The governing legislative provisions are as enacted under Section 107, 108, 109 and 112 of the Evidence Act. The Courts have spoken on standard and burden of proof as herein summarized below: Kirugi & Another v. Kabiya & 3 Others [1987]: Confirms the plaintiff must prove their case on a balance of probabilities. Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another [2015]: Defines the standard as finding a fact to be more probable than not. Mary Njoki v. John Kinyanjui Mutheru & 3 Others [1985]: Affirms the onus lies on the claimant to prove their case. 25.There is no standard text in the Evidence Act that considers these issues on the problems of burden of proof and standard of proof in legal litigation. However, my understanding clearly on whom the burden of proof lies is a fundamental requirement of any litigator before our Courts. This entails the Court’s understanding of the trial process, the mechanics of evidence adduction. The factors at play when presumptions are applicable and the basics of the burden on a party who has filed a claim, suit, petition, objection to the making of a grant or revocation of grant of letters of administration already issued. All cases are decided on the legal burden of proof having been discharged notwithstanding what Lord Brandon in Rhesa Shipping Co SA v Edmunds [1985] 1WLR 948 had remarked:“No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take”. 26.The standard and burden of proof is the acid test when coming to a decision in any particular case by a Judge, Magistrate or Chairman of a Tribunal. This is what the Court addressed in the case of Britestone Pte Ltd v Smit & Associates Far East, Ltd [2007] 4 SLR (R) 855 at [59].The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. Since the terms ‘proved’, ‘disproved’ and ‘not proved’ are statutory definitions contained in the Evidence Act (Cap 97, 1997 Rev Ed) (‘EA’), the term ‘proof’, wherever it appears in the EA and unless the context otherwise suggests, means the burden to satisfy the Court of the existence or non-existence of some fact, that is, the legal burden of proof: See ss 103 and 105 of the EA. 27.In Kenyan law, proving dependence to claim a share in an intestate estate falls under Section 29 of the Law of Succession Act. The Claimants who were financially supported or treated as a child by the deceased must demonstrate financial need for their maintenance using the criteria set out in the Act. When assessing whether the claimant was financially maintained of qualified as a dependent, Courts have categorized dependency under categories being both direct and indirect dependants as outlined in Section 29 (a)(b) & (c) of the Act. This means that even an adult child who is not an automatic beneficiary on intestacy can successfully prove financial need and moral obligation on account of the intestacy estate. The statutory factors which the Court can draw and evaluate for successive prove on dependence so as to secure financial award from an intestate estate include the following: Financial Resources & Needs: The claimant's current and future income, earning capacity, and any physical or mental disabilities. Nature of the Maintenance: Proof of the extent and duration of the financial support the deceased provided immediately before their death. Other Beneficiaries: The financial needs and resources of any other beneficiaries or existing heirs entitled under the intestacy rules. Obligations of the Deceased: Any moral or legal responsibilities the deceased had toward the Claimant during their lifetime. 28.The sole issue before this Court is whether in view of the conflicting evidence the Objector is entitled to a share of the estate of the deceased. On the side of the Petitioner who is a sister to the deceased, the deceased died intestate and left behind no wife or any legitimate child born out of a marital union. However, this was vehemently controverted by the mother to the Objector who testified on the chronology of events in which she came into contact with the deceased and from that intimate relationship the Objector was begotten. It was further the testimony herein referenced as ‘HJN’ that she courted the deceased and soon thereafter the Objector was born in March 1999. She was also to recall that during the lifetime of the deceased on and off they kept communication some of which was about the welfare and best interest of the Objector. It was only later that it happened that the deceased passed on and her desire is to have a share of the assets passed on to the Objector as the biological son of the deceased. 29.It is an established principle of both Kenyan and common law that the Courts should adopt a purposive approach interpretation of a Statute including the Law of Succession Act. This is now specifically mandated by the provisions of interpretation act which expressly provides that an interpretation would promote the purpose or object underlying the written law shall be preferred to an interpretation that would not promote that purpose or object. The words of a Statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and intention of Parliament. However, even in applying the purposive approach the Court must bear in mind the parameters literal text of the provisions and should assiduously guard against inadvertently rewriting legislation. 30.It may be of interest to note and for the benefit of the Petitioner and her witnesses that a living male person has the right and fundamental freedom to make a choice as to whom to associate with within the class of female gender whether as a concubine, girlfriend or marital partner and to continue taking financial responsibility which may arise within the pendency of that relationship. It is true from the evidence of both sides that the deceased was not legally married but there is overwhelming evidence admitted before this court by one HJN that she had an intimate relationship with the deceased in 1986 when she was working as a clerk at maize Centre and the deceased happened to be one of the persons who used to deliver the cereal for purposes of sale. The Objector and his witnesses pointed out that although the deceased was not formally married under any provisions of the Marriage Act 2014 he maintained a relationship with the Objector at the very earliest opportunity he acknowledged to one SJS, MK, PC and OK who were all witnesses attesting to the fact of the birth of the Objector in a relationship between HJN and the deceased. 31.At this juncture, it may be pertinent to refer to the Law of Succession Act on intestate succession where Section 3(2) (3) & (4) provides as follows:(2)References in this Act to “child” or “children” shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.(3)A child born to a female person out of wedlock, and a child as defined by subsection(2)as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.(4)Where the date of birth of any person is unknown or cannot be ascertained, that person shall be treated as being of full age for the purposes of this Act if he has apparently attained the age of eighteen years, and shall not otherwise be so treated. 32.The Law of Succession Act does not exclude an illegitimate child from succeeding his or her parents’ intestate estate and they share the Equality Clause under Article 27 of the Constitution with his or her legitimate siblings. The history of the gradual reform of illegitimacy laws in Kenya which culminated in the amendment of the Law of Succession Act under the above provisions cited elsewhere in this judgment is the story of an attempt to equalize the positions of children born in and out of wedlock by removing the legal disadvantages or restrictions suffered by the latter but to do so in a way which did not unnecessarily weaken the institution of marriage. This is to ensure the responsibility on the part of the person who has brought the child into this world and if he or she does not bear the responsibility society would have to bear it. 33.It is now settled principle in Kenya that the statutory provisions under Section 3(2) (3) & (4) of the operative Act should be construed in a manner which will take into account new situations which have arisen and which were not within contemplation at the time its enactment in 1981. 34.I have taken the liberty to internalize and discern the nature of the evidence adduced and admitted by both the Objector’s witnesses and the ones summoned by the Petitioner to rebut the narrative of existence of an illegitimate child born out of the courtship between HJN and the deceased during his lifetime. I have weighed the witnesses truthfulness using foundational legal principles that weigh inherent plausibility, internal consistency and consistency with undisputed objective facts. In my own evaluation the Objector’s version of events logically aligns with the physical reality and the circumstances of the case. In this respect, I have taken it into account the contradictions, embellishments or major discrepancies as between the witnesses of the Objector and that of the Petitioner. This is my logical conclusion, that the Petitioner has financial stakes in the estate which has resulted in favorable coloring of facts so as to defeat the case for the Objector. 35.In disputes of this nature involving inheritance rights the elephant in the room is always the credibility contest as between the legitimate and illegitimate heirs to the estate. The primary duty of a probate court is do justice. Implicit in this process is the principle that a Court should assess the evidence in accordance with the current Evidence Act, which includes the scientific evidence which may be adduced by the parties. That is where the most important task facing any Court is that of separating the wheat from the chaff. On reflection with regard to the aspect of truth as being an elusive goddess my very many years in the bench I have come to accept the majority of people lie in court and few people will tell the whole truth and sometimes those who tell the half-truth tend to be overrated by Judges and Magistrates and in that is the elephant in the room in so far as litigation is concerned. 36.The aspect of primary evidence which is of importance when considering matters of this nature involving inheritance one has to look at the circumstances upon which the evidence adduced by the biological mother to the Objector are dealt with by the Petitioner as an adversary to the dispute. It is also important for purposes of this judgment to understand that it may be in very rare occasions when a biological mother to a child could rise up and name a man in the street as the biological father of her child. There is nothing on record to demonstrate that the mother HJN was gathering this evidence for the very purposes to seek inheritance for her child who is the primary Objector to these proceedings. 37.There is also an irrebuttable presumption in law under Section 112 of the Evidence Act that it is the mother who knows the child’s true biological origins. However as we are all aware when disputes arise, and in this case unfortunately the deceased is not alive to call upon scientific evidence to the aid of the parties. The disputants to the legitimacy of the Objector has mainly come from the witnesses who cannot testify with certainty that during the lifetime of the deceased he never had any intimate contractual relationship with HJN from which the Objector was begotten. 38.In the circumstances of this case, the mother to the Objector has laid down the timelines in which she had a romantic relationship with the deceased and soon thereafter between 1986 and March 1989 the Objector was birthed. Therefore from the evidence before me I am persuaded to apply the presumption of legitimacy that the Objector was conceived or born during a valid intimate relationship between HJN and the deceased. The deceased therefore is legally presumed to be the father of the Objector and that could have only been disputed if he was alive to provide DNA samples for a DNA test proving non-access with the mother of the Objector during the time of conception. 39.In reiterating on the facts of these objection proceedings the evidence by the Petitioner for purposes of repelling the presumption was not strong, distinct, satisfactory and conclusive with regard that the deceased and the mother to the Objector had no access to each other or that sexual intercourse could not have taken place between their courtship in 1986 and March 1989 when the Objector was born. The burden therefore which lies on the Objector and his mother relying on the fact that he was born during the subsistence of intimate contractual relationship and within that permitted season there was the period of gestation in which conception is assumed to have taken effect. 40.As a result and on the totality of the evidence adduced by the Objector and the Petitioner, the balance of probability threshold on proven facts has been established in favor of the Objector to warrant this Court to declare him as a lawful and legitimate child of a man now deceased who had an intimate relationship with HJN. Therefore paternity is presumed arising out of the actual consummation or possibility of consummation between HJN with the deceased without hindrance. 41.This judgment will be incomplete without a comment also on the application seeking exhumation of the deceased’s interred body for purposes of extraction of DNA samples to establish paternity of the Objector. In Kenya, Courts require expelling, exceptional and unique evidence before ordering exhumation of a body for DNA test. The High Court has been on the forefront of consistently emphasizing that the dead should remain undisturbed and DNA is rarely compelled if less inclusive means like testing surviving family members are available. The fundamental principles in this branch of law include the following: Sanctity of the Grave: Courts apply the principle that a Christian or customary burial is final. Exhumation is only justified when it is the only way to resolve a critical, highly disputed issue of paternity. Exhaustion of Alternatives: If there are surviving acknowledged children or stored pathology samples available for a DNA match, a judge will reject exhumation as an unnecessary intrusion. The Evidence Threshold: Applicants must present compelling preliminary evidence (e.g., fraudulent birth certificates or a proven relationship with the deceased during their lifetime) rather than mere suspicion to trigger an exhumation. Constitutional Rights: Under Section 76 of the Evidence Act and the Constitution, bodily autonomy is highly protected. Courts will not force DNA testing on living family members without their consent simply to satisfy another party's paternity claim. 42.The notable cases applicable on the issue of exhumation of a body for a DNA test include inter alia the following; Thus in: Hellen Cherono Kimurgor v. Esther Jelagat Kosgei: One of the foundational local authorities where the High Court established that a body can only be disinterred if exhumation will directly resolve the real issue in dispute and is absolutely necessary for the ends of justice. In re Estate of JMK (Deceased): The court permitted exhumation because the applicant provided strong, unrefuted evidence of a relationship between herself and the deceased during his lifetime, making the DNA test essential to the child's inheritance rights. In re Estate of PWM (Deceased): The court declined exhumation, noting that the petitioner's rights could be determined through a succession process rather than disturbing the deceased's remains. Mary Mbuva v. Estate of Mathews Lemmy Adema: The High Court reinforced that mere allegations of paternity and requests for exhumation—submitted years after burial without sufficient proof of cohabitation or a valid birth certificate—will be dismissed. 43.In Kenya’s legal system the High Court sitting as a constitutional Court on this issue of exhumation of interred bodies for purposes of DNA test do balance the constitutional right to privacy under Article 31 and human dignity in Article 28 with administration of justice. While Courts have the inherent power to order a DNA paternity testing, application to exhume a deceased person’s body for this purpose must be scrutinized heavily and generally denied unless good cause is strictly proven. 44.The Objector has made an application for exhumation of the deceased’s remains for a DNA test. I consider this an exhumation of a paternity and inheritance claim without compelling or exceptional cause unjustifiably violates the right to privacy and the dignity of the dead when alternative prove can suffice. 45.The salient facts of this application are that the deceased who is Applicant’s father had an intimate relationship with one HJN and as a consequence of which he was begotten. On this issue the Court in the State of South Dakota v Damm [1936] 266 NW 667 at 670-71 remarked as follows:‘In the end the debate about compulsory blood tests amounts, as I see it, to a shut down between the ideas, these two ideas which cannot be satisfactory reconciled, the idea that the truth be discovered whenever possible and the idea that the personal privacy should be respected. Both are important. Neither, however, is sacrosanct. Each, as it happens, gets sacrificed, the first on some occasions, the second on others. The clash between the two does not really lend itself argument. How the conflict is resolved in this country when the law on the point is eventually settled will depend largely on the store the courts then sets by each idea, on its own sense of priority in that regard’. 46.In this case I am satisfied that the Applicant have not met the threshold on a balance of probabilities for the reliefs he seeks to have the body of the deceased exhumed for purposes of conducting a DNA test to prove paternity. I therefore do hold that the circumstances of this do no desire the grant of the exhumation order so as to prove paternity as proposed by the Applicant. The application therefore fails. 47.In the result the following orders shall abide:a.That the application for recognition of the Objector FAN Alias FK as a legitimate claimant to the estate of the deceased under Section 29 as read with Section 3(2) (3) & (4) of the Law of Succession Act be and is hereby allowed.b.That the application for exhumation of the interred body of the deceased for purpose of submitting it for extraction of the DNA samples for profiling of the DNA test match on paternity as between the Objector and the deceased be and is hereby declined in terms Article 28 and 31 of the Constitution.c.That a declaration be and is hereby made that the mother of the Objector HJN has discharge the burden of proof on a balance of probabilities under Section 107, 108, 109 and 112 of the Evidence Act that between 1986 and March 1989 when the Objector was born she had an intimate contractual relationship with the deceased and the outcome of it was the begotten son now the Objector in this intestacy proceedings.d.That the right to engage in a legal or extramarital relationships is implicit as the right of every adult person to engage with a person of the opposite sex based on free consent subject to the exact scope and parameters dictated by the domestic legislation of Kenya.e.That the right to marriage is an option that exist and every individual has a right to exercise that right to marry or to exercise it not to marry.f.That the Constitution of Kenya under Article 27 guarantees equality and prohibits discrimination on grounds of birth, marriage, social origin and as read with Article 53 it will be unconstitutional to deny a child born out of wedlock equal inheritance as those born within a formal marriage.g.That the costs of this application be in the cause. DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.…………………………..………R. NYAKUNDIJUDGE