https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9585

In re Estate of Njino (Deceased) (Succession Cause 16 of 2016) [2026] KEHC 9585 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9585 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 16 of 2016 RN Nyakundi, J July 3, 2026 IN THE MATTER OF THE ESTATE OF FR. JOSEPH KARIUKI NJINO (DECEASED) Between Michael Njuguna 1st Respondent Milcah Wamboi Njino 2nd Respondent and N.J.R (Suing on behalf of D.K a minor and sole heir of the Estate Of The Late FR. Joseph Kariuki Njino - Deceased) Objector Ruling 1.On 8th of February 2016 in the matter of the Estate of Fr. Joseph Kariuki Njino Bishop Cornelius Kipg'eno Korir petitioned for grant of probate which was subsequently gazetted on 27th May 2016. Thereafter the Court on 22nd July 2016 issued grant of letters of administration and written Will which was annexed of the Deceased detailing the distribution of the estate survived of the Deceased. The said Will of the Deceased is dated 20th May 2015. 2.On 5th March 2018 an ex parte summons expressed to be brought under Section 47 of the Law of Succession Act, Rule 49 and 73 of the Probate and Administration Rules was filed in Court and in part the Applicant applied for the following orders:a.That this Court be pleased to order that Reverend Maurice Anthony Crowley be substituted in the place of the Executor herein Bishop Cornelius Kipng'eno Korir in respect of the above cause as the Rev. Bishop Cornelius Kipngeno Korir is now Deceased having died on 20/10/2017.b.That the grant of letters of administration with written Will annexed issued on 22nd July 2016 be issued to Reverend Maurice Anthony Crowley. 3.The application is based on the following grounds:-a.That the full name of the Deceased to whose estate the proceedings herein relate are Reverend Joseph Kariuki Njino.b.That the said Reverend Joseph Kariuki Njino died on 22nd July 2015 at Eldoret Hospital in the Republic of Kenya, leaving a valid written Will dated 20th May 2015.c.That the said Will appointed the incumbent Bishop of the Catholic Diocese of Eldoret as the sole Executor of the Will.d.That as at the time of institution of the succession cause herein, Bishop Cornelius Kipng'eno Korir (Deceased) was the incumbent Bishop of the Catholic Diocese of Eldoret.e.That the said Bishop Cornelius Kipng'eno Korir (Deceased) applied for and was issued grant of Letters of Administration with Will annexed on the 22nd July, 2016 by this Honourable Court.f.That subsequently, before the said grant could be confirmed, Bishop Cornelius Kipng'eno Korir died on 30/10/2017.g.That the matter is pending confirmation of grant issued on the 22nd July, 2016.h.That presently Reverend Maurice Anthony Crowley is the incumbent Bishop of the Catholic Diocese of Eldoret.i.That the estate of Reverend Joseph Kariuki Njino Will be exposed to wastage and depletion should it be left for long without Executor.j.That it is therefore necessary that the Executor herein Bishop Cornelius Kipng'eno Korir (Deceased) be substituted with Reverend Maurice Anthony Crowley.k.That this application is made promptly and in the interest of justice.l.That this Court has the power to grant the orders sought. 4.In support of the application is the annexed affidavit of Reverend Maurice Anthony Crowley who deponed as follows:a.That I am a male adult of sound mind and the Applicant hereinb.That I am the incumbent Bishop of the Catholic Diocese of Eldoretc.That the succession proceedings herein relate to the estate of Reverend Joseph Kariuki Njino who died on 22nd July 2015 within the Republic of Kenyad.That the said Reverend Joseph Kariuki Njino died testate, leaving a valid written Will dated 20th May, 2016e.That as at the time of institution of the succession cause herein, Bishop Cornelius Kipng'eno Korir (Deceased) was the incumbent Bishop of the Catholic Diocese of Eldoret.f.That the said Will appointed the incumbent Bishop of the estate of Eldoret as the sale Executor of the Will.g.That the said Bishop Cornelius Kipg'eno Korir (Deceased) applied for and was issued grant of letters of administration with Will annexed on 22nd July, 2016 by this honourable Courth.That subsequently, before the said grant could be confirmed, Bishop Cornelius Kipng'eno Korir died on 30/10/2017.i.That this matter is pending for confirmation of the grant issued on the 22nd July, 2016.j.That presently I am the incumbent Bishop of the Catholic Diocese of Eldoret afore-stated.k.That the estate of Reverend Joseph Kariuki Njino will be exposed to wastage and depletion should it be left for long without an Executor.l.That it is therefore necessary that I substitute the said Bishop Cornelius Kipng'eno Korir as an Executor to the estate of Reverend Joseph Kariuki Njino and a fresh grant of Letters of Probate with Will annexed be issued in my name.m.That this application is made promptly and in the interest of justice.n.That this Court has the power to grant the orders sought. 5.Soon thereafter an objection to the making of the grant under Section 68 of the Law of Succession Act and Rule 66 of the Probate and Administration Rules was filed by one NCR on behalf of DK, which had the following averments as dated 9th November 2018a.That I hereby object to the summons for appointment and or elections of the Rev. Maurice Anthony Crowley as Executor and or administrator of the estate of Fr. Joseph Kariuki Njino, who died on 22nd July 2015 made through the Apostolic Administrator of the Diocese of Eldoret of P.O Box 842-30100 Eldoret in this Court through Exparte summons dated and filed in this Court on 5th March 2018. The interest of the said DK - minor through his guardian and mother Ms. NJR in the Estate is that of a son and the grounds of the objection are as follows:i.That DK is not listed as beneficiary but as a matter of fact should be the sole heir to the Deceased to the exclusion of all else including the Applicant.ii.That the said minor heir has not renounced his rights as an heir nor consented to the Applicant’s application nor their predecessor's application to so administrator the said estate on his behalf and neither was he served with any citation to renounce such right.iii.That it would be improper and unlawful for the Applicant to be allowed to administer the estate of the Deceased without the Objectors Guardian, because the church diocese was and remains a trustee for the estate.iv.That although the Deceased had no filial relationship with the Guardian of the minor/Objector, he was a consequence of their liaison and ranks in priority to the Catholic diocese of Eldoret any other entity that may wish to benefit from the Deceased estate.v.That as its not disputed that the minor/Objector relates to the Deceased as a son, who is a dependant in need of shelter, clothing, health and education, all of which are needs that are current and dynamic, then, adequate and sufficient provision ought to be made for him before the liquidation of the assets and its accruals to the various beneficiaries named therein.vi.That the Objector/minor and his existence is a fact well known by the Deceased family and beneficiaries of the Will.vii.That I annex here with the birth certificate of the Objector /minor in support of his Objection and or demand for Provision from the estate of the Deceased. 6.In this respect, there was a further objection on the making of the grant by one Micheal Njuguna dated 26th August 2019 who in context stated as follows:a.That I Michael Njuguna on behalf of the beneficiaries of the Estate of the late Father Joseph Kariuki Njino of Post Office Box 4528-30100 Eldoret hereby object to the Summons for Appointment and or Substitution of Rev. Maurice Anthony Crowley as Executor and or Administrator of the Estate of the above named FR. Joseph Kariuki Njino who died on the 22nd July, 2015. On the following grounds:a.In the last Will of the late Fr. Joseph Kariuki Njino, most of the properties were bequeathed to the beneficiaries and or family members of the Deceased and therefore it would be imprudent to appoint a stranger as an administrator of the Estate.b.The beneficiaries and or family of the late Fr. Joseph Kariuki Njino has not consented to the Applicant's application to administer the said estate on their behalf.c.The Grant of Letters of Administration with Written Will issued to the Late Bishop Cornelius Kipng'eno Korir has become useless and inoperative as a result of his demise.d.The Petitioner and or Applicant is not fit to administer the Estate 7.In furtherance to that objection, the family and beneficiaries filed the following Grounds of Opposition on the substitution of the Executor on the ground that the Catholic Church has persistently failed to file into Court statements of account in respect to the assets survived of the Deceased. In this respect the following prayers were sought by the family and beneficiaries:a.Accordingly, the Catholic Church/the Applicant herein be required to file into Court a fill and true statements of account/status reports of the Estate before agitating the application dated 29th June, 2020.b.This Honorable Court is vested with jurisdiction to order the Catholic Church/the Applicant herein to file the statement of Account/Status Reports the applicationc.The Catholic Church/the Applicant herein have persistently failed to engager consult the Family/Beneficiaries in the administration/management of the Estate. 8.From this perspective it is very clear that the family members or beneficiaries had raised certain objections to the making of the grant, but of more fundamental importance is the objection raised by NJR on behalf of her son allegedly said to be fathered by the Deceased. The second issue in this contestation is about the execution of the Executor to administer the estate of the Deceased. 9.It is clear from the record that on 12th October 2022, Ogola J pronounced himself as follows in so far as substitution of the Executor is concerned and he did so in the following words:“Be it known that on the 15th Day of March 2021 letters of administration with Will (and codicil(s)) annexed of all the estate of FR. Joseph Kariuki Njino Deceased late of Eldoret who died domiciled in Kenya on the 22nd July 2015 at Eldoret Hospital which by law devolves to and vests in his personal representative, a copy of which will (and codicil(s) is hereto annexed, were granted by this Court to Bishop Dominic Kimengich he having undertaken to faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do. 10.With this order, the issue of substitution of the Executor was settled in the eyes of the Court, but not with the beneficiaries, as I would be demonstrating herein under shortly. This Court on 24th October 2022 received yet another summons expressed to be brought under the provisions of Section 59, 65, 80 and 83 of the Succession Act Cap 81 Laws of Kenya and Rule 49 and 73 of the Probate and Administration Rules by Bishop Dominic Kimengich the Applicant who applied for the following orders:a.That the RT. Rev. Bishop Dominic Kimengich be allowed to renounce his appointment as the Executor of the estate of the late Fr. Joseph Kariuki Njino (the Deceased herein) and the Court be pleased to appoint someone else to act in that capacity (if need be) as the Honourable Court may decide.b.That this Honourable Court be pleased to hold that the affidavit annexed to the instant application is sufficient to show cause and/or has shown cause regarding the filing of accounts with respect to the estate of the Deceased herein as ordered by the Court.c.That this Court be pleased to make such further orders and/or any other orders as this cause would require and/or deem fit. 11.The application is grounded on the following grounds:a.That letters of administration with Will annexed with respect to the estate of the Deceased herein were issued by this Honourable Court to the Late Bishop Cornelius Kipng'eno Korir on 22/7/2016.b.That before the estate of the Deceased herein could be confirmed, the administrator/sole Executor to the Estate i.e. Bishop Cornelius Kipng'eno Korir passed away on 30/10/2017.d.That vide an application dated 29/7/2020 the Applicant herein who is the incumbent Bishop of the Catholic Diocese of Eldoret was substituted in the place of Bishop Cornelius Kipng'eno Korir as the Executor.e.That however no amended letters of administration with Will annexed have been issued to the Applicant herein pursuant to the said substitution to enable them handle the matters connected to the estate.f.That the estate of the Deceased is yet to be confirmed.g.That there are objections that have been raised and/or made by individual(s) purporting to be son(s) of the Deceased and who are not listed/mentioned /included in the Will that the present Executor cannot address himself on adequately.h.That there are other people particularly family members who may be better placed to administer and answer better to issues /queries arising from the Estate of the Deceased than a written Will and/or the Applicant herein may answer.i.That it is therefore in the interest of justice that the Applicant herein be allowed to renounce his appointment as the Executor of the estate of the Deceased herein to pave way for the confirmation and eventual conclusion of this cause.j.That the Applicant is allowed by law to renounce Executorship. 12.In support of the application is the annexed affidavit of Rt. Rev. Bishop Dominic Kimengich who deponed as follows:a.That I am the Bishop of the Catholic Diocese of Eldoret and the sole Executor of the Estate of the Late father Joseph Kariuki Njino (the Deceased) hereinb.That upon my assumption to the office of the Bishop of the Catholic Diocese of Eldoret, this succession cause was brought to my attention.c.That I am advised by our advocates on record which advise I verily believe to be true that letters of administration with Will annexed with respect to the estate of the Deceased herein were issued by this Honourable Court to the Late Bishop CorneliusKipng'en1o Korir (my predecessor) on 22/7/2016.d.That the said Bishop Cornelius Kipng'eno Korir had been appointed as the Executor of the Deceased Estate vide the Will dated 20/5/2015.e.That I am further advised by our advocates on record, which advise I verily believe to be true that before the estate of the Deceased herein could be confirmed, the administrator and the sole Executor i.e. Bishop Cornelius Kipng'eno Korir passed away on 30/10/2017.f.That in view of the aforegoing vide an application dated 29/7/2020, I was substituted in place of Bishop Cornelius Kipng'eno Korir as the Executor so as to protect the interest of the estate of the Deceased.g.That I am advised by our advocates on record which advise I verily believe to be true that although the substitution was done, no amended letters of administration with Will annexed have been issued to me and/or signed by this Honorable Court to enable me handle matters connected to the estate of the Deceasedh.That I am further advised by our advocates on record which advise I verily believe to be true as follows: -a.That the estate of the Deceased herein is yet to be confirmed.b.That the confirmation of the estate was delayed and/or has been pending due to other factors other than the change of circumstances as aforesaid.c.That an objection was filed in Court dated 9/11/2018 by a lady / Objector known as NJR who raised an objection to the issuance and continuation of the succession cause herein on the basis that the Deceased herein had a son who had not been catered for and/or included in this cause.d.That the said objection is still pending and has not been determined.e.That I am advised that it is trite law and procedure that the confirmation of the grant could not be done and cannot be done when there are serious application(s)such as the one filed by the Objector which are still pending.f.That as the administrator I do not have knowledge of the minor's claim of being the son to the Deceased and it is therefore necessary that the issue be determined by this Honourable Court.g.That as the Executor, the powers I have regarding the estate of the Deceased herein flow from the Will; I have read the Will and I do not see anything mentioned about one NJR and/or the alleged son to the Deceased.h.That in the absence of a determination of the issues raised by the Objector, I cannot as the administrator include anything and/or any claim raised by him in the application.i.That the Objectors application is likely to affect the Will. 13.From all this legal conversation as to renunciation by the Applicant who had been substituted as an Executor, this Court on 21st September 2023 pronounced itself as follows:Be it known that on the 21ST day of September, 2023, Letters of Administration with Will (and codicil(s)) annexed of all the Estate of FR. Joseph Karikuki Njino Deceased late of Eldoret who died domiciled in Kenya on the 22nd day of July 2015 at Eldoret Hospital which by law devolves to and vests in his personal representative, a copy of which Will (and codicil(s)) is hereto annexed, were granted by this Court to Michael Njuguna and Milcah Wamboi Njino of P.O Box 3313-30100 Eldoret 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. 14.There was a further amendment to the grant to accurately describe the person and the administrator in the following names Michael Njuguna Peter Njino. 15.What followed next is a litigation by NJR, who in her evidence in Court relied substantially in her witness statement dated 3rd of April 2025 in which she deponed as follows:a.I am an adult of sound mind and competent to make this statement.b.I met the late Rev. Father Njino in the year 1993, while he was a professor at Moi University Kesses Campus, and later moved to Our lady of Peace Catholic Parish in Nandi hills thereafter he proceeded to Masinde Muliro University in Kakamega.c.Over time, we developed a close relationship in which he mentored and supported me in various aspects of my life, including education, career, and personal welfare.d.He ensured that I progressed both academically and professionally.e.At one point, when I sought employment in Namibia, he supported me.f.When I was financially constrained and needed to join St. Luke's North Kinangop Nursing School, the Deceased directed me to the Bishop Cornelius Korir, who then volunteered to sponsor my education together with other sponsors.g.After my graduation from nursing school, I struggled to secure employment. The Deceased helped me to get a job at Walter Reed Research project, in Kericho; where he would visit me from time to time.h.Over time, our relationship became more intimate, though due to the nature of his status, we maintained discretion and established boundaries.i.In July 04, 2003, I gave birth to our son, and the Deceased was overjoyed upon learning of my pregnancy.j.Throughout my pregnancy and after the birth of our child, the Deceased provided financial and emotional support, including: Paying for rent, school fees, and house help wages; Covering general upkeep expenses for me and the child; andk.Ensuring that his name appeared on our son's birthcertificate.11. At one point, our child developed pneumonia and was admitted at Moi Teaching and Referral Hospital. The Deceased personally visited and supported us during this period.l.I would frequently visit the Deceased with our son, and I was well-known to his family and close associates.m.The Deceased’s family kept in touch with me, including informing me when they recently lost the late Rev. Father Njino's nephew; Peter Njino.n.In 2012, I relocated abroad with my children for better opportunities, but we remained in communication through emails and phone calls.o.Even after he fell ill, we maintained contact, and at one point, he needed financial assistance for medication, which I sent through my sister and brother.p.I wished to attend the Deceased's funeral; however, at the time, I was still in the process of settling in Canada and did not have the necessary travel documentation or financial means to afford a flight ticket.q.I am Willing to have our son undergo a DNA test to confirm my son’s biological relationship with the Deceased.r.My son is the biological child of the late Rev. Father Njino and is, therefore, entitled to inherit his father's estate, as he has never forfeited his legal right to succession.s.I make this statement truthfully and in good faith, knowing the consequences of making a false declaration. 16.This evidence in chief by the Objector was subjected to intense cross-examination by learned Counsel for the Petitioners and she gave a chronology of events on how she had an intimate relationship with the Deceased which involved full companionship, maintenance, and established support systems for her education, personal best interests and welfare and career progression. It was her evidence in Court that on 4th July 2003 that intimate relationship brought forth an offspring and as a product of the love relationship she enjoyed with the Deceased. It was also her testimony and answer to the cross-examination carried by learned Counsel for the Petitioner, that the Deceased covered fully all financial resources required for her general upkeep and welfare together with the child. The Objector was also emphatic in Court that the name of the Deceased was also incorporated as the father in her son’s birth certificate which was produced and admitted in evidence as an exhibit in support of her case. 17.The second witness, who was summoned by the Objector was one Esther Jepchumba Barno who in her evidence in chief relied on her witness statement dated 25th February 2025 in which she stated as follows on oath:a.I am an adult female of sound mind, gainfully employed within Uasin Gishu County.b.I became acquainted with the late Joseph Kariuki Njino in the year 1993. At that time, I was a student seeking admission to Kobujoi College for a course in Social Work. In pursuit of this admission, I sought his assistance in obtaining are commendation letter, as he was employed at Moi University.c.During that period, I was married and had a young family. On several occasions, Father Njino provided me with food to support my family. Additionally, I was personally acquainted with Father Njino as I resided with his sister in Langas, Uasin Gishu County.d.While pursuing my studies, I befriended NJR. We regularly interacted and I observed that she frequently visited Father Njino at his private residence. Subsequently, NJR (the Objector) confided in me regarding her romantic relationship with the late Father Njino, which resulted in the birth of a male child, DK, born on 4th July 2003. I am personally acquainted with the family of the late Father Joseph Kariuki Njino and have interacted with them on several social occasions.e.Additionally, during his period of ill health, I personally visited and attended to the late Father Njino. 18.This evidence was also tested in cross examination by learned Counsel for the Petitioner and the witness was able to sustain her ground that the Objector and the Deceased were romantically involved in a relationship which gave rise to the birth of her son and for all intent and purposes the Deceased is his biological father. 19.In so far as the answer to this objection is concerned, the evidence adduced came from the joint statement from the Administrators being Michael Njuguna Peter Njino and Milkah Wamboi Njino which in brief provided the following tapestry:a.That during his lifetime, Fr. Joseph Kariuki Njino (Deceased) was a priest in the Catholic Church and was serving in the Diocese of Eldoret prior to his demise. As a Catholic Priest Fr. Joseph Kariuki Njino had taken a vow of chastity which is a promise to remain celibate meaning to abstain from sexual intercourse and any sexual activity and he had focused his life to serve God and the Catholic Church. As a celibate, the Deceased was unmarried.b.Upon his demise the Deceased was accorded full Catholic Funeral Rites for a priest including a vigil service, a funeral mass and a Rite Committal, with the Deceased's body vested in priestly vestments and the coffin was placed facing the assembly with priestly insignia. The family of the Deceased fully participated in the funeral rites.c.That in response to the Objector's Witness Statement dated 3rd April, 2025 and the Witness Statement of Esther Jepchumba Barno dated 25th February, 2025, we wish to state as follows;d.That the Objector NJR and the minor DK are strangers to the family of the late Father Joseph Kariuki Njino (Deceased). They were neither dependants and or beneficiaries of the late Father Joseph Kariuki Njino hence they could not be included in the Written Will. The Objector has not proven or demonstrated any probative to the contrary.e.That the Objector, the minor and or the purported witness Esther Jepchumba Barno never visited the family members herein during the lifetime of our brother or even after his demise. They never visited our brother Fr. Joseph Kariuki Njino. (Deceased) during his prolonged hospitalization in various hospitals.f.That as adult siblings, we reside in different places in the Republic of Kenya and as such allegations in the purported witness statement of Esther Jepchumba Barno are untrue, baseless and untenable and ought to be disregarded in its entiretyg.The Objector and the minor were not present during the Catholic funeral rites for a priest that were accorded to the late Father Joseph Kariuki Njino (Deceased).h.That clearly, the Objector, the minor and the purported witness are mere busy-bodies and or inter-meddlers and or busy bodies as appertains to the Estate of the Deceased.i.The Objection proceedings hereof lack merits, it is bad in law and an abuse of the process of the Court and should be dismissed with costs.j.We beseech the Honourable Court to distribute and transmit the Estate of the Deceased in accordance with the terms of the Written Will made on 20th May, 2015. 20.This basically formed the basis of the objection that the written Will by the Deceased distributing the estate should make provisions for one DK who was begotten out of the relationship as between the Objector and the Deceased. 21.In the interim period pending the determination of the objection learned Counsel for the Objector in addition filed a notice of motion dated 18th day of July 2025 expressed to be brought under Sections 8, 10 and 15 of the Children Act, 2001, sections 1A, 1B, 3A, 3B of the Civil Procedure Act, 63(e), and 98 of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, Sections 146, 147, 150 and 173 of the Evidence Act, and Article 23, 27, 50, 53 & 159 of the Constitution, Sections 47, 82 and 83 of the Law of Succession Act, Rule 49 and 73 of the Probate and Administration Rules, seeking the following orders:a.That this Honourable Court be pleased to issue an order directing the exhumation of the body of the Deceased, FR. Joseph Kariuko Njino buried at Catholic Diocese of Edoret Cemetry under Turbo Parish for the purpose of extracting biological samples for DNA testing.b.That the Honourable Court be pleased to issue an order directing that DNA samples be taken from the Heir/or the subject and from the Deceased’s remains and analyzed by the Kenya Medical Research Institute (KEMRI), being the official public forensic institution with recognized credibility, established chain of custody protocols, and impartiality suitable for Court-sanctioned DNA.c.That this Honourable Court be pleased to issue an order that the DNA analysis report resulting from the said tests be filed in Court within 30 days.d.That the Honourable Court be pleased to grant leave for a duly designated expert from the Kenya Medical Research Institute (KEMRI)to attend Court and produce the DNA analysis report as an expert witness, and that the said report be admitted as an exhibit in these proceedings.e.That the honourable Court gives leave for another witness of the Objectors to testify before the Administrators testify.f.That the costs of this application be in the cause. 22.The application based is on the following grounds:a.That the Deceased is the alleged biological father of the subject and/or heir and there is a legitimate legal dispute arising from this relationship.b.That exhumation and subsequent DNA testing are necessary for the just and fair determination of the issue in dispute.c.That there is no other way of ascertaining the biological relationship in issue except through DNA testing involving the Deceased.d.That unless the orders sought herein are granted, the Applicant stands to suffer irreparable harm, including loss of inheritance and/or denial of legal identity.e.That the expert report and testimony are necessary to assist this Honourable Court in reaching a just and reasoned conclusion in the matter.f.That it is in the interests of justice that the orders sought be granted. 23.In support of the application is the annexed affidavit of NJR who deponed as follows:a.That I am the Applicant herein and represent the subject, well seized of the facts giving rise to this application.b.That the Deceased, FR. Joseph Kariuko Njino, died on or about the 22nd day of July, 2015, and was interred at the Catholic Diocese of Eldoret Cemetery, under Turbo Parish.c.That I am the biological mother of the subject herein and was in a romantic relationship with the Deceased which resulted in the birth of the said subject and/or heir.d.That I verily believe that the Deceased was the biological father of my son, and the issue of paternity and/or familial relationship is a live and contested matter in the pending succession proceedings.e.That the said subject has been named in the birth certificate as the child of the Deceased.f.That I seek to confirm this biological relationship through DNA testing, which necessitates the exhumation of the Deceased's remains for purposes of obtaining appropriate forensic samples.g.That I am ready and Willing to bear all the requisite costs for the exhumation and DNA analysis.h.That I humbly pray that this Honourable Court be pleased to grant leave for a qualified forensic expert from the Kenya Medical Research Institute (KEMRI)-being the designated public forensic institution with legal mandate and credibility in handling DNA testing for judicial purposes-to prepare and file a DNA analysis report. Further, that the said expert be permitted to attend and appear before this Honourable Court as an expert witness for the purpose of producing the report.i.That one Peterson Mwangi was informed by the Deceased during his lifetime that he had a child with me whom he loved, cherished, and supported, both emotionally and materially.j.That the Deceased is the alleged biological father of the subject/heir, and a genuine legal dispute exists regarding the said relationship which affects the rightful succession and inheritance of the estate.k.That the exhumation and subsequent DNA testing are necessary to facilitate a fair and just determination of the contested paternity issue.l.That there is no alternative means of conclusively establishing the said biological relationship other than through DNA testing involving the remains of the Deceased.m.That unless the orders sought herein are granted, I and the subject herein stand to suffer irreparable prejudice, including denial of inheritance and legal recognition.n.That the forensic expert's report and oral testimony are essential to aid this Honourable Court in arriving at a just, fair, and informed decision.o.That it is in the interest of justice and equity that the prayers sought in the application be granted.p.That I make this application in the best interests of my son, who is the only known child of the Deceased. 24.In driving the points of law home, both Counsel filed submissions on both the main objection and the application on exhumation of the Deceased body for purposes of extracting the DNA samples. In the first instant, learned Counsel Momani Gichana for the Objector, placed reliance in his written submissions dated 29th August 2025. In seeking leave of the Court, learned Counsel contention was that the Objector had adduced credible documentary evidence in support of admitting one DK as a dependent, and legitimate beneficiary of the estate of the Deceased. This documentary evidence according to learned Counsel included the following:a.Copies of intimate E-mail Correspondences between the Objector/Applicant and the Deceased dated 31.7.2007, 28.9.2009, 24.10.2007, 3.2.2008 and 11.8.2014;b.Agreement between the Deceased's family and the Objector/Applicant acknowledging the relationship between him and the Objector/Applicant, the resultant offspring being the said DK, and even proposing that the child be given that property known as Nyandarua/Kirima/1163 so as to settle the dispute;c.Various photographs with some showing the said DK as a child and one of the Objector/Applicant together with the Deceased;d.Birth Certificate of the said DK dated 12th March, 2008 clearly indicating the Deceased's name "Joseph Njino Kariuki" as the father.e.Witness Statements of Esther Jepchumba Barno and NJR.In learned Counsel’s view the strength of the oral evidence as supported by the documentary evidence is sufficient to demonstrate that on a balance of probabilities the case by the Objector has been made out to warrant the Court exercise of discretion for exhumation of the Deceased’s body for samples extraction for purposes of the DNA profiling in support of his legal typology on both the declaration of dependency and exhumation of the body learned Counsel urged the Court to be guided by the principles in the following authorities: Joachim Ndaire Macharia v Mary Wangare Ndaire & Another [2008] eKLR HCCA 63 of 2006, DNM v JK [2016] eKLR, Wilfred Karenge Gathiomi v Joyce Wambui & Another [2016]eKLR, MW & 3 Others v DN Succession Cause no. 123 of 2017, in re estate of Amos Muhuri Koria (Deceased) [2021] eKLR, Cason v State 140MD App 379[2001], Learned Authors of Murphy on evidence 12th Edition. 25.It’s against this background of facts and the law that learned Counsel had a strong view that the exhumation of the Deceased’s body to have a DNA expert undertake the analysis would drive home this sentiment on the paternity of the Deceased and the said DK 26.Whereas, on the part of the Petitioners learned Counsel Mr. Njuguna stated that all the properties survived of the Deceased were devolved to the respective beneficiaries and there is nothing left for the dependent and the Objector to lay hands on as the beneficiaries to the estate of the Deceased. It was also learned Counsel contention that the objection as filed is fatally defective in view of the fact that it was filed as representative claim on inheritance by the mother the one with proper locus standi being the purported child of the Deceased had attained the age of majority. Therefore, he was capable of filing his objection without passing through a proxy who also happens to be his biological mother. Learned Counsel further submitted that the evidence of the Objector and her witnesses should not be construed to mean that he was supporting his own biological son but by his very nature, he was a philanthropist and would give assistance and support to the less privileged and maybe that was how the Objector benefited from his generosity. In conclusion learned Counsel of the Petitioner submitted and urged the Court to dismiss both the objection and the DNA application. 27.The objection proceedings and the DNA profile test through the exhumation of the body of the Deceased are all intertwined into one. The predominant question is whether the Objector has discharged the burden of proof on dependency against the Testate estate of the Deceased to warrant a portion of the property to be set aside for his benefit? Decision 28.It is a matter of record that the Objector seems to have been cohabiting with the Deceased during his lifetime in what one can describe a relationship falling under concubinage. Subsequently, one DK was born and immediately after his birth the Deceased’s name was entered as the father of the newborn in the Register of Births maintained by the Registrar of Births who issued the Birth Certificate Registration Number xxxxxx dated 12th March 2008. The Objector allegedly reasoned in Court, that such a request was being made on the basis that she had been involved in an extramarital relationship with the Deceased due to which one DK was begotten. It was also the evidence of the Objector that from thenceforth that the Deceased made provisions for their basic rights until his demise. 29.This evidential material by the Objector was not substantially objected to by the Petitioners/Administrators save that they relied on the calling of the Deceased to the Catholic Ministry in which he was ordained as a father to go ye forth and delivered the Gospel of Jesus Christ to bring the souls ready to surrender their lives to God, the Son and the Holy Spirit to realize internal salvation. In this regard, it was noted such an in-depth anointing as a minister of the Catholic Church he was not compliant and competent to enter into a marital union with the Objector or any other person as this was prohibited in the Church manual and doctrines which governed priesthood. However, what was not alluded to by the Petitioners is that the Deceased served as a minister in the Catholic Church, but at all material times he led his independent life while serving the Lord and there were no competent witnesses to give a chronology of both his public and private life with precision. The probative evidence by the Objector especially when she had access to the Deceased were not matters within the purview of the Petitioners/Administrators. The issue herein is regarding the effect of the conclusively presumption of legitimacy as so far put forth and strongly so by the Objector. To this end the Objector stayed on the typology on presumption of legitimacy whish she invited this Court to find it as conclusively and unless and until is rebutted by leading evidence from Petitioners/Administrators reflecting that there was non-access between her and the Deceased when the child in question was begotten. 30.This contentious issues in paternity are to be tested within the scope of the provisions of Sections 107, 108, 109, 110 and 112 of the Evidence Act which expressly provides as follows:107.Burden of proof:(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.Incidence of burden: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.Proof of particular fact: The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.110.Proof of admissibility: The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.112.Proof of special knowledge in civil proceedings: In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. 31.In this discourse, the fundamental question to be answered by this Court without even reference to the last testamentary of the Deceased, is whether the Petitioner/Objector in these succession proceedings has satisfied the criteria of proving dependency of the alleged child arising out of a union, relationship or concubinage with the Deceased. 32.In Kenyan law of Succession, dependency dictates who receive a share of a Deceased property. Spouses and children under Section 29 of the Act to inherit both movable and immovable assets automatically. However, other relatives such as parents to their sons or daughters, siblings or grandchildren must prove they were being maintained by the Deceased immediately prior to his/her death to secure land rights or other shares which formed part of the estate. See the principles in re Estate of Chepkurgat Cheptony Deceased [2023] KEHC 1078 eKLR, Mungai v Attorney General Petition E416 of 2023 [2025] KEHC 8544 KLR, and re Estate of Albert Musyoka Mueti [2020] KEHC 6005. 33.In so far as Section 29 of the Act is concerned, dependency is a question of fact requiring strict proof under the spectrum of Sections 107-109 of the Evidence Act. The evidence must demonstrate and establish that the claimant was either directly maintained by the Deceased or were children or widows requiring support from the Deceased’s estate. This is how the Courts have navigated the litigation landscape on dependency by establishing the following key principles when determining and evaluating proof of dependency:* Automatic Dependency for Wives and Children: Section 29(a) of the Law of Succession Act outlines that a wife, former wife, and children of the Deceased are recognized as automatic dependants regardless of whether they were directly maintained by the Deceased immediately prior to his death. However, for a child, the claimant must discharge the burden of proving paternity on a balance of probabilities (e.g., via DNA testing or birth certificates* Requirement of Proof for Other Dependants: For other individuals claiming under Section 29(b)(c) such as parents, step-children, grand-children, or other relatives), the Court requires strict proof of actual financial maintenance. The claimant must show they were receiving substantial, ongoing financial or in-kind assistance from the Deceased for their basic necessities prior to death* Equal Status for Widowers: Following the landmark High Court decision in Mungai V Attorney General, Courts no longer constitutionally require a surviving husband to prove dependency to inherit from his Deceased wife's estate, placing widowers on equal footing with widows.* Complete Court Discretion: Under Section 42 of the Act, once dependency is successfully established, the High Court has complete discretion to determine how much the dependant should receive based on the extent of their reliance, the size of the estate, and the needs of other beneficiaries. 34.Who is a dependant in succession law as defined under Section 29 of the Act? It refers to an individual who relied on the Deceased for financial or other forms of support. The Act categorizes dependants into different groups. Specifically, under Section 29(a), it covers the wife or wives, and children of the Deceased, whether or not they were maintained by the Deceased before his/her death. In this category, there is no requirement to prove maintenance. This means that any biological child of the Deceased is automatically recognized as a dependant, regardless of whether they were financially supported before his/her death. Secondly, any wife or wives of the Deceased automatically qualifies as dependants regardless of whether they were financially supported before his/her death. That is why the law provides that a dependent who feels that he/she has not been adequately provided for in a Will or under the law of intestacy may seek legal recourse for reasons of provisions in the estate of the Deceased. This is provided for under Sections 26, 27 & 28 of the Law of Succession Act. 35.It is important to note that the exclusion from the written Will of the Deceased does not invalidate it. Notwithstanding that legal position, the law envisions that if all the assets have already been distributed and the dependant was unjustly excluded reasonable provision cannot be made under the Will. However, Section 26 of the Law of Succession Act empowers Courts to exercise discretion to intervene when a Will unfairly excludes dependants provided there are available assets. That is when the Courts may adjust the distribution to accommodate the excluded dependant. It is trite law that Courts in such circumstances are not powerless nor without judicial authority to render the excluded dependant from being disinherited for the reason that all assets have been distributed within the scope of the Will. There is always a remedy including invalidating the Will so that the distribution of the estate is governed by the intestacy laws. It is what the Court of Appeal had in mind in the case of Marete v Marete & 3 Others [2024] KECA 371 KLR that:In the circumstances, even if the impugned Will is valid, the mode of distribution is so skewed so as to render the beneficiaries of the first house literally disinherited. The impugned Will failed to meet the guidelines set out under Section 28, leaving some beneficiaries wholly disinherited. Since all of the Deceased’s free property was distributed in the impugned Will, it is our view that the only way that the Court can make reasonable provision for all the dependants of the Deceased, including the Respondents, is to invalidate the last written Will of the Deceased and distribute the properties that comprised the estate of the Deceased under the intestacy laws of the Law of Succession Act. 36.The following key authorities are relevant in our situation, first in the case of Sarah Kanini Thigunku v Elizaphan Njuki Thigunku [2016] eKLR the Court observed that:“For one to be a dependant, however, under Section 29 aforesaid, it is clear that one must prove dependency. The use of the words “…as being maintained by the Deceased immediately prior to his death...” in that Section, connotes that one must prove that he was dependent on the Deceased before his demise…A mere relationship does not automatically qualify one to be a dependant under Section 29 of the Act. Prove of dependency is imperative.”Secondly, the Court in RNM v RMN (2017) eKLR stated that:“Proof of dependency is thus a condition precedent to the exercise of the discretion in Section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under Section 29 of Act, the Court held as follows in the case of Beatrice Ciamutua Rugamba v. Fredrick Nkari Mutegi & Others, Chuka Succession Cause No. 12 of 2016: “From the foregoing, a dependant under Section 29 (b) and (c) must prove that he/she was being maintained by the Deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency.” I note in this regard that the Applicant did in her affidavits admit that the subject children were not the Deceased’s biological children, and did not provide any additional evidence of how the Deceased maintained the children, and the responsibility he undertook with respect to the said children. This Court cannot in the circumstances make any conclusive findings as to the said children’s dependency on the Deceased at this stage.” 37.The other factors the Court has to consider under dependency includes the following:Section 29 of the Law of Succession provides for circumstances under which the appellant may be considered a dependant of the Deceased:In considering whether any order should be made under this Part, and if so what order, the Court shall have regard to-a.the nature and amount of the Deceased's property;b.any past, present or future capital or income from any source of the dependant;c.the existing and future means and needs of the dependant;d.whether the Deceased had made any advancement or other gift to the dependant during his lifetime;e.the conduct of the dependant in relation to the Deceased;f.the situation and circumstances of the Deceased's other dependants and the beneficiaries under any Will;g.the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant. 38.In my view, I have carefully analyzed the evidence of the Objector and her witnesses about the intimate relationship she had with the Deceased, notwithstanding the vows of celibacy taken during his ordination as a Father to the Catholic Church. This Court must take cognizance of the provisions of Article 28, of the Constitution which provides that, every person has inherent dignity and the right to have the dignity respected and protected. There is also the right to privacy which is a fundamental right under Article 31 of the Constitution of Kenya and therefore protecting an individual’s personal choices, bodily autonomy and intimate association including a choice of a partner an essential component of this rights. In my considered view, Courts must recognize that live-in relationships are permissible and do not amount to an offence, therefore protecting consenting adults who choose to cohabit outside traditional wedlock. Yes, I hear and loudly so from the Petitioners and the Executors of the Will that the Deceased had taken a vow of celibacy, but that did not bar him from exercising his right to privacy and in so doing, there was a consensual relationship with the Objector and that right so exercised cannot be criminalized under the umbrella of the Deceased having been ordained as Catholic Minister of the Church. The recognition of extramarital relationship though frowned upon by the Kenyan people and even the Courts and such relationships or face contested legal standing, this window on intimacy contract between two consenting adults can never be extinguished maybe so the reference upon the second coming of Jesus Christ to redeem, the very being He created in the garden of Eden. In Kenya the State’s ideological vision of marriage is characterized by the distinct features in the Marriage Act of Kenya 2014. If a survey with empirical data was to be conducted across the country, I have no doubt that over 50% of the populace either married or unmarried engage in extramarital relationships and is indeed a big market which is sustained by the very persons who may be frowning on the preference of such relationships. This intimacy contract framework between consenting adults is not fiction and I am of the considered view that the Supreme Court of Kenya in the case of Fatuma Athman Abud Faraj v. Rose Faith Mwawasi & 2 Others (Supreme Court Petition E035 of 2023) took cognizance of this human DNA and in this case, the Supreme Court ruled that:“It is unconstitutional to deny children born out of wedlock the right to inherit from their father's intestate estate. The Court emphasized that constitutional protections of equality override restrictive religious or customary practices (such as Islamic law principles that previously deemed such children ineligible to inherit), and that the best interests of the child are paramount.” 39.This decision cemented the progressive jurisprudence which brings harmonization of personal law with constitutional imperatives under Article 27(4) on non-discrimination on any of the grounds stated therein and went further to incorporate the welfare and best interests of the child as expressly provided for in Article 53 of the Constitution. What this means when it comes to matters of children’s rights and best interests Courts must enforce inheritance rights for children born out of wedlock as it is the case in this objection proceedings. The Deceased’s family cannot rely on the protocol of the vows of celibacy which is a voluntary, lifetime commitment to abstain from marriage and sexual activities, usually for religious and spiritual reasons. It involves freeing oneself from worldly attachments to dedicate one’s energy, love, and service to higher purpose and community. This is primarily practiced by Catholic priests, Monks and Nuns. This apparently was the category and class in which the Deceased was known to belong in public that his life had eliminated the aspect of a spouse with no intention to marry or sire biological children of his own. In public, for the Deceased, it was a body really given to God but apparently from the evidential material presented by the Objector including the documentary evidence of a birth certificate which was never controverted by the Executor and the beneficiaries to the estate. Off the pulpit his body gave in into the intimacy contract with the Objector, unfortunately it brought forth an issue, a child innocent, but there he was that his biological father was a priest in the Catholic Church. 40.The Respondents during the period under review laid bare by the evidential material presented before this Court by the Objector failed to prove that, off the pulpit, there was an access between the Objector and the Deceased in which the child DK was begotten from the Objector perspective and her evidence there is conclusive proof that DK is the legitimate child of the Deceased. When legitimacy is established, DK can claim dependency and inheritance rights from his legitimate father now Deceased and the Executor of the estate cannot run away from this. This is a well set of law that paternity and legitimacy are distinct concepts in family law, in our case this succession dispute. I am therefore of the consider view that objection proceedings as against the testate estate of the Deceased have been determined through a legal presumption which has not been controverted by the Respondents, whereas paternity is a matter of medical science and if the Deceased was alive DNA could have been necessary, so that the child who is at the center of these proceedings would have been emotionally and psychologically been settled for he has a right to know his parentage and the accrued rights emanating therefrom as expressly promulgated in Article 53 of the Constitution in the scope of the Children’s Act. 41.This question of paternity, which was raised by the Objector that the body of the Deceased be exhumed is intrinsically connected with maintenance and survival rights of the child but going by the Supreme Court decision those rights under the rubric of the welfare and the interest of the child are claimable from the biological father and in our case the Deceased even though and when the child in question is described as illegitimate. To this end I am satisfied that the presumption of legitimacy of DK is conclusive and non-leading evidence from the Respondents reflecting in non-access intimacy between the Objector when the child DK was born. The death of the Deceased occurred sometime back, if this Court was to go ahead and grant the prayer for exhumation of the body of the Deceased it may bastardize an innocent child like DK and violate the right to dignity under Article 28 and to privacy in Article 31 of the family and friends of the Deceased. The Courts therefore on matters of DNA test must move sparingly and with caution. It may be said that a DNA may be within the best interests of the child to know his/her biological father but there must be exercise of balance of interests by the Court on the necessity of a DNA test and the ability to differentiate between legitimacy and paternity. 42.In this vein where a husband or wife or in boyfriend/girlfriend romantic relationship engage in extramarital intimacy or in a relationship loosely referred to as concubinage and no rebuttal direct or circumstantial evidence of importance is forthcoming from any of the disputants before the Court as to the legitimacy of their engagement within the well-known provisions of the Statute like in our case the Marriage Act and fortunately the womb of the mother is blessed with a child who is born of that relationship, in law, it is conclusively presumed to be a legitimate child of the relationship. Essentially, cohabitation or concubinage even though it may be known that any one of them before a family Court may be guilty of infidelity, this child born out of wedlock is legitimate, competent and with the capacity and locus standi to petition to inherit the net estate of his/her biological parents. In the instant case there is no evidence from the Respondent/Executors which would move this Court to make a declaration that DK is a child of another father surviving or living other than the Deceased. The Deceased was a minister of the Catholic Church and I find no iota of evidence that this presumption of legitimacy of DK has been rebutted by proving that the entire period described by the Objector when she enjoyed consensual relationship with the Deceased DK could not have been conceived. If the Respondents before this Court could have established on a balance of probabilities that there was no such exercise or enjoyment of right to privacy on intimate contract between the two adults and if they did have the lack of sexual access between them, I could have ruled in their favor in these proceedings. 43.It is well established that this canon and doctrine of access and non-access between two adults who have voluntarily covenanted to engage in an intimacy relationship under Section 112 of the Evidence Act does not require a party to prove beyond reasonable doubt that they have or did not have sexual intercourse at the time the aforesaid child named in the proceedings of this nature could have been born or begotten. In this case when I ask about access in its ordinary and purposive meaning, I am referring to the possibility or an opportunity for the two consenting adults either in that marital union or relations so that they can engage in sexual intercourse or extramarital affair and they may not be residing in the same domicile location, marital home, city, village or any such geographical to preclude them from the possibility of them having an opportunity to engage from the benefits and entitlement which accrue from such marital relations. There is no evidence from the Respondents that both the Objector and the Deceased had no means or ability to have intimate relationship or what is finely defined as marital relationship with each other. 44.In the case at bar, this application of the DNA test cannot be ordered as a matter of course there must be a strong prima facie case from the Respondents to dispel the presumption arising under Section 112 of the Evidence Act. I have carefully examined the evidence between both parties and the Objector’s quest and agitation for the body of the Deceased to be exhumed. It was for the very purpose to affirm further the doctrine of legitimacy of DK, in no certain terms was conceived and born during the period she had an intimate relationship with the Deceased who subsequently maintained and sustained the basic rights of the child. This was not a question of her watering down a strong prima facie case of access with the Deceased which was made out with sufficient material evidence placed before the Court to arrive at a decision in this matter. 45.In my considered view, this Court must also respect the dead who have been called to the heavenly mansion for those who believe in the resurrection after death. In this respect like other rights in our Bill of Rights the right to privacy in Article 31 which forms part of the fundamental rights and freedoms protected by Chapter 4 of the Constitution including the right to life in Article 26, and personal liberty under Article 29 is not an absolute right. Therefore, a law or a decision of the Court which encroaches upon the right to privacy would have to withstand the touchstone of the permissible restriction on fundamental rights as provided for in Article 24 of the Constitution which provides as follows:(1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—(a)the nature of the right or fundamental freedom;(b)the importance of the purpose of the limitation;(c)the nature and extent of the limitation;(d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. Constitution of Kenya, 2010 23(2)Despite clause (1), a provision in legislation limiting a right or fundamental freedom—(a)in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;(b)shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and(c)shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.(3)The State or a person seeking to justify a particular limitation shall demonstrate to the Court, tribunal or other authority that the requirements of this Article have been satisfied. 46.In the context of Article 31, an invasion of privacy on exhumation of the body of the Deceased must be justified on the basis of a policy, law or a decision of the Court which must stipulate a procedure which is fair, just and reasonable. The applicable law, which has not yet been enacted in Kenya must also be valid to the reference to the encroachment upon the right to privacy and any other such rights which are likely to be violated against such any other person like family members of the Deceased in the event of the exhumation of the body of the Deceased takes place. In the case before me the application for exhumation fails the proportionality test which ensures that any limitation of a right under the Bill of Rights has a rational nexus between the objects and the means adopted to achieve it. In this context while the Court is being asked to issue orders or declarations for exhumation of the Deceased’s body so that a DNA test on paternity can be carried out, I must be mindful of the collateral infringement of privacy rights of other persons who will be affected by such an exhumation. That threshold under Article 24 of the Constitution has not been met to lift the veil on the right to privacy as embodied in Article 31 of the Constitution. The Constitution therefore calls upon Kenyan Courts to tread cautiously for the right to human dignity, the right to life and the right to privacy are intertwined and together those rights must be protected. 47.In my view, with the above constitutional imperatives, forcing the exhumation of the Deceased’s body for it to undergo a DNA test though the condition of his body is not known would incidentally subject his private life to scrutiny from the outside world particularly on the matters of infidelity and his personal reputation and his standing in society whereas as of now the Objector has laid down before this Court within the confines of the law that there was an intimate relationship with the Deceased and on account of this DK was born. That is the reason why the Deceased granted leave for his name to find its way in the birth certificate annexed as documentary evidence in support of her case. It is also of concern to this Court that the child DK’s dignity and privacy must be protected. The effects surrounding societal stigma about his birth should not find its way into his rights and fundamental freedoms. He did not make an application or be part of the consent of the contextual union between his mother the Objector and the Deceased. 48.It is largely appreciated that in our legal system Courts play a crucial role in protecting the rights of children born out of wedlock or in extramarital relationships by emphasizing that children are innocent and must not be left to suffer from the stigma of their parents’ relationships. There are a variety of decisions both from the Children’s Courts and other Family Courts in Kenya who have pronounced progressive jurisprudence in their judgments to ensure the doctrine of the welfare and best interest of the child is not infringed or violated at whim by the very parents who played a role for their existence. However, I can understand the unique position the Objector finds herself with regard to this dispute on inheritance rights involving a member of the clergy with the Catholic Church. It is usually frowned upon by society that any such relationships do exist as between members of the clergy in our religious organizations particularly those who have taken the vows of celibacy towards their ordination as Brothers, Fathers or Bishops to be ministers of the gospel over their flock. 49.This Court takes judicial notice of the fact of non-recognition or decline to distill or refuse all together that extramarital relationships fall within the basic corpus of basic rights of human autonomy to cohabit with a person of his/her choice to nurture and flourish a conjugal right. It is not surprising that Courts have ruled elsewhere in our progressive jurisprudence that a live-in relationship between a married man or woman and a non-married person or another married person is not permissible. It is actually in our Section 171 of the Penal Code, Cap 63 which defines bigamy as an offence in the following language:“Bigamy occurs when an individual already legally married goes through a marriage ceremony that is legally void because their spouse is still alive. It is classified as felony and carries a penalty of up to five years in prison. 50.It is against this illicit relationship that are outlawed in Kenya within the statute books but in practice individuals exercise their rights to privacy, right to conscience, right to personal autonomy, right to life and freedom of association and making a choice on who to engage with in marital relationships. Invariably the highlight of the case before me is of a different characteristic in context and text that notwithstanding the vow of celibacy by the Deceased unofficially entered into a relationship of convenience and as of necessity ultimately DK was begotten. It is therefore abundantly clear, that the Deceased’s estate and the Executor cannot render DK a refugee and a stateless child without the script of making provisions from the residual estate of the Deceased. 51.In focusing on this issue am not persuaded that the estate of the Deceased has been fully shared out in accordance with the legal instrument. I dare say that there is a moral compass of every human being and there is also customs and culture which governs our multi-ethnic society. As if that is not enough, there is the supreme law of the land enacted in 2010 and enabling statutes which forms part of the governance structure of our society. However, when it comes to personal life choices there are always moral judgments to be made and followed by each individual being but the facts remain that even in our constitutional democratic space there is no right or wrong way of life to live unless it is causing infringements, violation or serious harm to another. The supreme Court of India once therefore observed in the case of Kushboo v Kanniammal and Anor [MANU/SC/0310/2010] that morality and criminality are not co-extensive, if a man and woman decide to live as a couple it is well within their right to life which in our case is Article 26 of the Constitution and unless their marital relations encroach and infringes the rights and fundamental rights of others it is by no means can be deemed a criminal offence. This is not to say that marriage as an institution well provided for in Article 45 of our Constitution and the provisions of the Marriage Act 2014, the institution should be respected and with sanctity be made the cornerstone of our society and intergenerational existence. This is the spirit, the letter and the ghost of the Constitution in Article 45 imperatives. It must be recognized that live-in relationship and cohabitation is more of the norm than the exception. It is upon the legal system of this great constitutional Republic of Kenya to look yonder as to what rights may accrue to women in live-in relationships or one engaged in extramarital relations together and a child is begotten. The million-dollar question is when disputes arise of this nature, how will Courts protect and guarantee both the fundamental rights and freedoms of the mother and the child? I have in mind that some of these marital relations are regarded as illegal within the tenets of the Marriage Act. Why is this important? In essence, therein is a relationship akin to a marriage with all its fundamental and elements as defined in law with minimum differentiation. 52.In the instant case, by all accounts the Objector and the Deceased had an opportunity during his lifetime to engage in a consensual relationship and in the course of it DK was born. However, it is the Court’s presumption they must have abandoned the hope of a marriage as legal recognition of their relationship was impossible due to the vows of celibacy taken by the Deceased. Feeling emboldened by the news of the birth of the child, they seemed to have agreed for the Deceased to make provisions for his maintenance and his survival rights as provided for in the Children’s Act and Article 53 of the Constitution, notwithstanding the Deceased being a man of the alter of the Catholic Church, he did not suffer social or religious stigma in having his name prescribed in the Certificate of Birth No. xxxxxx dated 12th March 2008. This documentary evidence under our statutory framework together with a series of photographic evidence annexed to the Objector’s material evidence remains unchallenged and uncontroverted by the Respondents/Executors. Whereas they may be feeling pained by the turn of events by their brother, uncle, sibling, that during his lifetime as a vowed minister of the Catholic Church who had taken vows of celibacy he had been involved in a marriage like relationship and relying on the Will to deny vehemently the existence of DK as a product of intimate contractual relationship with the Objector. 53.In my view adultery or engaging in illicit relationships is not fundamentally a crime in Kenya save for the exception of the offence of bigamy under Section 171 of the Penal Code. However, it is a fact from a religious standpoint such acts or conduct is classified as sin and it is both socially and religiously unacceptable in this country and more so for a minister of the church and specifically the one who has taken the vows of celibacy to engage in any intimate or extramarital affairs with members of the female gender. The decision to marry or not to marry by any member of our society whether belonging to any religious congregation or an atheist or ordinary citizens is a fundamental right of individual autonomy and choice. So that in our case the decision made by the deceased to engage in a heterosexual relationship with the Objector is to me intensely and even constitutionally a personal choice. Notwithstanding that sometimes his individual autonomy was governed by the moral compass of society. 54.Fundamentally, this legal saga between the Objector and the Executor to the estate of the Deceased is about the welfare and best interest of the child which in our constitutional dictates remains paramount and as such are never extinguished or compromised due to the circumstances of his or her birth, including being born out of an extra-marital relationship. The Courts as guardians of the Constitution as reflected in the decision of the Supreme Court of Kenya ought to and must refuse to penalize children for the actions of their parents. This is a case in which the Executors and beneficiaries to the estate of the Deceased were not privy when during his lifetime he exercised his right to privacy, individual autonomy, right to make a choice as to whom to associate with more specifically members of the opposite gender. It is unfortunate that the Deceased during the process of the making of the last testamentary he had to extinguish the welfare and best interest of the child begotten together with the Objector whereas there is strong evidence that he did what he can to ensure sustainability of his basic and survival rights as enshrined in Article 53 of the Constitution and the plethora of rights defined in the Children’s Act of Kenya with its corresponding amendments by the Legislature. The evidence by the Objector is not mere relations it is corroborated with strong circumstantial evidence and other unchallenged documentary evidence in support of the welfare and best interest of the child herein referenced as DK. Am therefore of the considered view within the framers of the Constitution and our statutory scheme on the children rights that children born out of void or voidable or extra-marital relations are legitimate and possess the same inheritance rights to their parents who voluntarily consented to engage in an intimate relationship and the ultimate outcome of it was the birth of a child. Therefore, either of their parents’ property who find themselves in this scenario and circumstances is their property with the same legal protocols like children born out of a valid marriage as defined in our Marriage Act 2014 with any subsequent amendments mad thereto by the Legislature of Kenya. What the Executors ought to balance is the welfare of the child by the name DK who at all material times during the lifetime of the Deceased knew and came to terms that he was his biological father. This property in the written Will was never acquired by any of the beneficiaries or the Executors. The rights to ownership under Article 40 of the Constitution accrue to the Deceased. There is therefore a sense of urgency for the Executors and the beneficiaries to carry forth the vision of the Deceased in so far as DK is concerned in terms of financial, emotional, educational, and moral wellbeing even after the death of the Deceased. The intriguing facet of paternity versus legitimacy is a major legal battleground in our family Courts throughout the country and the victims remain to be the innocent children who found themselves in this conflict without having made any contribution at all as their parents battle it out in the various levels of Courts to establish paternity and legitimacy of their existence. This is one such case where the deceased exercising his right to privacy failed to make provision during the distribution scheme of his assets to the beneficiaries in the written Will. It is of significance for the beneficiaries and Executors to the estate of the Deceased that the child DK who was conceived and birthed during the extra-marital relationship as between the Objector and the Deceased is not a chattel or a ball to be shuttled or shunted from one parent to the other. The fact that he was left out of the Will is no excuse for them not to make provisions on inheritance rights for that is not only a constitutional imperative but also the dictates of customary law. That a child like DK should not be rendered homeless, stateless or an asylum seeker while his birth rights are traceable to the consensual relationship between the Objector and the Deceased. 55.As a matter of emphasis and following suit with other already existing precedents children born from void and voidable marriages are entitled to inherit their parents’ properties and any Administrator or Executor under the Law of Succession Act who objects or protests or challenges that entitlement of a share to be transmitted to any of those children or child may it be land acquired by the Deceased within their ancestral lineage or on his or her acquisition during his lifetime that denial and limitation of that right is a violation of our constitutional rights to equality in our Article 27(1) (4) and right to dignity in Article 28 of the same Constitution. It is also strictly an obligation of the law and the Constitution that fathers to those unions and marital relations are obligated to provide financial maintenance to their children born in their household and in the outer space regardless of his marital status with the mother. I think that the very reason evidence abounds and manifests itself from the Objector that DK was being supported by his late father the Deceased before his demise. There is a legitimate expectation from DK that the estate sustains the same financial maintenance from the Executors to the estate of the Deceased. 56.Before I make the final declaration, the poet Richard Blanco spoke on marriage equality in the following poem:How many seasons had to turn, how many years did we have to watch the rain fall on others? How long did we have to hold love like a secret in the dark, a fragile spark cupped in our hands?We built a home out of endurance and grace, planting gardens no law could uproot, learning the language of quiet devotion, writing our vows on the breath of the wind.But love was never just ours to defend, it was an ancient truth waiting to be named, a natural right, wild as the rivers, as undeniable as the rising of the sun.Now we stand together, unshadowed and proud, our hands intertwined in the open light. No longer just wishing upon the horizon, but living the future we fought to ignite.No one can measure the weight of this wait, the miles we have walked to reach this decree. But today we speak the simplest of truths: we are finally whole, finally free. 57.I have reviewed the entire evidential material on the historical marital relationship between the Objector and the Deceased. It is appropriate to conceive and evaluate every aspect on the chronology of events which led to the intimate contractual relationship between the Objector and the Deceased in which DK was begotten and now is an adult and the objection proceedings were filed as joinder with his mother NJR. There is no dispute that the Respondents made attempt to discredit the proceedings and prayed for the same to be struck out for misjoinder in view of the fact that DK is now an adult with capacity to file his claim for inheritance against the estate of the Deceased. That argument and submissions are not sustainable as the mother was just an intermediary of DK without necessarily pursuing her fundamental rights and freedoms pursuant to the long marital relation she enjoyed with the Deceased though in absence of formalization of the relationship as prescribed under the Marriage Act 2014. That kind of technicality cannot be invoked by the Respondents so as to defeat the substratum and delivery of substantive justice to DK who found himself as a lone ranger in a relationship commenced, nurtured and flourished between two adults without his consent but which trampled and violated his fundamental rights and freedoms. In view of the foregoing in terms of Section 107, 108, 109, 110 & 112 of the Evidence Act the Objector has discharged the standard and burden of proof on a balance of probabilities for the following declarations to be made as against the Respondent and the Executors or the estate of the Deceased:a.That a declaration is be and hereby made that the Objector and the Deceased were in an intimate, consensual, contractual relationship during the lifetime of the Deceased.b.That a declaration be and is hereby made that as a consequence of an access and opportunity to nurture and flourish the marital relations, though outside the provisions of the Marriage Act 2014 DK was born, maintained, sustained, and provided for within the scope of the welfare and best interest of the child by the Deceased during his lifetime.c.That a declaration be and is hereby made that by dint of the birth certificate dated 12th March 2008 the Deceased is named as the biological father of DK.d.That a declaration be and is hereby made that it is now trite that children born out of short and long-term live-in relationship though not within the provisions of the Marriage Act 2014 are never considered as bastards or illegitimate for all intents and purposes under Article 27 (1) & (4) of the Constitution as they enjoy equal protection before the law and suffer no discrimination to prejudice or occasion injustice as a violation of their rights and fundamental freedoms.e.That a declaration be and is hereby made that children born from such continuum relationships like DK in our case are legitimate and are entitled to inherit their parents’ property both movable and immovable and no written Will of the Deceased should be as a shield by the Executor/Administrators to defeat the existence of those rightsf.That a declaration be and is hereby made that the Executor makes provisions for a share of the estate to be apportioned in terms of Sections 35, 36, 37, 38, & 39 read cumulatively and purposively to part with a share of the estate to DK in conformity with Article 27of the Constitution within 60 days from today’s ruling and in default the probate grant of representation shall stand revoked and the proceedings of confirmation to commence de novo.g.That a declaration be and is hereby made that the exhumation request of the Deceased’s body be and is hereby declined as body tissues of siblings’ DNA testing could have readily been considered as an alternative and non-traumatizing option.h.That a further declaration be and is hereby made that the DNA test in the circumstances of this case may be a mere fishing enquiry not capable to dislodge the conclusive legitimacy presumptions of DK as a child born within the intimate contractual relationship between the Objector and the Deceased under Section 112 of the Evidence Acti.That a declaration be and is hereby made that no compelling forensic necessity has arisen to exercise discretion for the buried body of the Deceased to be exhumed for the purposes of DNA test and analysis.j.That a declaration be and is hereby made that once a body is buried it should not be disturbed unless a strong and new compelling evidence that disinterment is in the direct interest of justice which the Court finds it is not the case in this succession cause.k.That the costs of this succession cause be in the cause. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 3RD DAY OF JULY 2026.R. NYAKUNDIJUDGE