[2022] KEHC 14862 (KLR)

In re Estate of Geoffrey Mathews Kakuli Nzale (Deceased) (Succession Cause 7 of 2019) [2022] KEHC 14862 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14862 (KLR)

Republic of Kenya

In the High Court at Kitui

Succession Cause 7 of 2019

RK Limo, J

November 9, 2022

IN THE MATTER OF CONFIRMATION OF GRANT OF LETTERS OF ADMINISTRATION INTESTATE, UNDER SECTION 71(1) OF THE LAW OF SUCCESSION ACT (CAP 160) LAWS OF KENYA

Judgment

1. This cause relates to the estate of the late Geoffrey Mathews Kaluki Nzale (deceased) who died intestate on October 23, 2013 domiciled at Kivani Sub-Location, Kitui County. The deceased died leaving behind the following, as per the affidavit of Ann Maria Matha in support of the petition filed herein;i.Kamene Kaluki (wife-divorced)ii.Linda Syongi Larssoniii.Astrid Mutongio Kalukiiv.Peter Kyalo Nzivov.Joyce Mwikali Kathatu

2. The letter from the area chief dated June 11, 2019 accompanying the petition lists the following dependants;i.Esther Kaluki -1st wifeii.Kamene Kaluki- daughteriii.Dogma Kaluki-daughteriv.Anna Maria Martha Kaluki-daughterv.Linda Syongii Larsson Kaluki-daughtervi.Astrid Mutongoi Kaluki-daughtervii.Lilian Wangui-3rd wifeviii.Peter Kyalo Nzivo Kakuli –sonix.Sally Kaluki -4th wifex.Virgil Vergeer Kaluki-sonxi.Michael Vergeer-son

3. This court on April 5, 2020 granted Anna Maria Matha Kaluki the letters of administration of the estate of the late Geoffrey Mathews Kaluki vide grant dated October 26, 2020.

4. On September 2, 2021, the administratrix vide an application dated August 31, 2021 applied for confirmation of grant and gave a proposal on distribution of the estate as per a list dated September 1, 2021.

5. In the application for confirmation, the administratrix gives the following as the only children and the beneficiaries of the estate of the deceased herein;a.Kamene Kalukib.Linda Syongi Larssonc.Astrid Mutongoi Kalukid.Anna Maria Marthae.Leonell KalukiShe also names Joyce Mwikali as the only sister to the deceased.

6. Peter Kyalo Nzivo, the protestor herein filed a protest vide an affidavit of protest sworn on January 5, 2022. His contestation in the protest filed is that he is a son of the deceased and that his mother, Lillian Wangui concealed that fact from him but through relatives, he was able to establish that the deceased herein was his biological father.

7. He stated that the deceased agreed to take care of him and even agreed to pay his school fees but his aunt, the sister to the deceased who was reportedly given the school fees by the deceased refused to pay for his schooling. He also stated that the aunt bad mouthed him to the deceased which severed their relationship. He stated that the deceased was preparing to introduce him to the rest of the Kakuli family and even give him his last name prior to his demise in 2013. He blamed his aunt for leaving him out of as a beneficiary and stated that he was ready to take a DNA test to prove that the deceased was his biological father adding that the deceased would not have left him out as a beneficiary.

8. In court during trial, the protestor stated that he was introduced to the deceased in 1999 and that all along he was known as the son of the deceased. When he was asked about his identify card (ID) and birth certificate, he stated that they bore the name Nzivo and Paul Nzivo respectively indicating his father’s name but he insisted that the deceased was his biological father.

9. He described different encounters that he had with the deceased. He stated that when he met the deceased, the deceased told him that he knew of the protestor’s mother and also gave him Kshs 10,000/- for shopping. That on another, occasion, he met the deceased and the deceased told him that he was leaving for Botswana but that his aunt Joyce Mwikali would take care of him as well as his schooling needs. That on another accession, he met the deceased in the company of one of his daughters namely Kamene.

10. He stated that he was raised by his mother and that he had not met any of his other siblings apart from Kamene. He avers that the deceased only came into his life when he was 25 years old.

11. He faulted Joyce Mwikali for not informing him of the demise of the deceased herein and that at the burial, she instructed him not to identify himself as a son to the deceased promising him that after the funeral, the issue would be sorted out.

12. In his written submissions through learned counsel M/s Mbugua Atundo & Macharia Advocates, the protestor contends that he has always been ready to undertake DNA test to confirm his claim that he is a biological son to the deceased herein. He submits that he should not be subjected to discrimination on the basis of his birth and cites protection under the provisions of article 27(1) & (4) and article 53 (1) (e) of theConstitution of Kenya.

13. He urges this court to take the discovery approach by ordering for a DNA test to be carried out so that his claim over the estate cab be determined.

14. He has placed reliance on the cases of The Estate of Martin Luther Owour (deceased) [2018] eKLR , Wilfred Karenge Gathiomi vs Joyce Wambui & Anor (2016) eKLR, MW & 3 Others vs DN (2018) eKLRandre Estate of Ruiru Muchoki Gikonyo (2022) eKLR where the courts allowed conduct of DNA testing to establish relationship for purposes of establishing dependency.He urges the court to defer confirmation of grant until after DNA test results are out in order to determine his claim.

15. On the other hand, the administratrix has termed the protestor as a stranger to the family insisting that the deceased never mentioned anything to do with him in his lifetime. She contends that if the protestor proved his paternity, she has no problem acknowledging him.

16. She further avers that the protestor has never personally reached out to her as an adminstratrix of the estate and that he had never attended any family gatherings.

17. She further states that in the list of dependants, she included the name of the protestor that the inclusion was the subject to proof of paternity and that after he had failed to provide proof, she left him out in the proposed mode of distribution.

18. She adds that she has not met the protestor in person, never seen his identification card or his birth certificate.

19. On the request of the protestor for a DNA test involving her, her siblings and the protestor, the administratrix opined that the results according to advise from an expert she did not name could not give accurate or sufficient proof on paternity in the absence of a sample from the deceased.

20. In her written submissions through learned counsel M/S Mohochi & Company Advocates, the administratrix contends that the protestor had failed to provide any evidence that he was the son of the deceased or show evidence that the deceased accepted him as his son during his lifetime.

21. The applicant also contends that the protestor has not proved that he is a dependant within the meaning of section 29 of the Law of Succession Act.

22. She further submits that as a further demonstration that the protestor is not the son of the deceased, birth certificate bearing the name of another man as his father was tendered and besides that, the same was issued one year after the death of the deceased. She submits that a sibling DNA test cannot determine paternity conclusively.

23. This court has considered the protestor’s case as well as the representations made by the administratrix. There are only two issues for determination which are;i.Whether the protestor is a dependant/beneficiary of the estate of the deceasedii.If so, which mode of distribution would be fair to all beneficiaries?

Whether the protestor is a dependant 24. The question of who is a dependant in this context is well provided for under section 29 of the Law of Succession Act. A ‘dependant’ means;a.The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b.Such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death

25. The above provisions mean that for the protestor to bring himself within the provisions of section 29 of Law of Succession Act, he needed to prove or demonstrate by facts/evidence that;a.One, he is a biological son of the deceased or that the deceased accepted and took him as his own child orb.that the deceased maintained him by providing for him that is either providing food, shelter, school fees or meet any other need immediately prior to his death.

26. Now let me turn to the evidence or facts that were presented before this court. The protestor was named initially by the administratrix as a beneficiary in the affidavit in support of the petition for letters of administration. She however omitted him in the subsequent affidavit in support of the summons for confirmations of grant. The explanation is that the inclusion of the protestor on the initial affidavit sworn on December 13, 2018 was subject to proof of paternity by the protestor. There is nothing in the said affidavit in that regard but the subsequent affidavit sworn on August 24, 2021 contradicts the contents of the earlier affidavit in so far as the position of the protestor is concerned.

27. Furthermore, the protestor who had the burden to prove his claim on the estate by proving paternity failed to call the chief who was the author of the introductory letter dated June 11, 2019 which letter named him as one of the heirs of the estate. The omission to call the maker of that critical document was detrimental to the protestor’s case in light of the burden of proof well stipulated under section 107 of the Evidence Act. The probative value of that letter dated June 11, 2019 was low because it was not tendered in evidence.

28. There was no sufficient evidence tendered in regard to paternity which means his claim on dependency under section 29 (a) is not sustainable. The eulogy exhibited as 'AK2' does not mention him as a child of the deceased.

29. Besides the above, the evidence by the protestor evidently went against his claim under section 29 (a) because he stated that his own mother did not disclose to him that the deceased in this cause was his biological father. According to him, he only learnt that the deceased was his biological father through relatives. However, he did not name who those relatives were and neither did her present them to court as witnesses to that fact. The question lingering in the mind of the court is if the protestor’s mother knew for a fact that the deceased herein was the biological father of the protestor, why would she conceal that fact? Secondly, why not come to court to at least shed light on when and how the relationship with the deceased, if at all, went on and if the protestor was a product of that relationship. In her absence, the protestor’s claim on paternity is left hanging simply on what he was told by unnamed person(s.). That is hearsay and not tenable in law.

30. This court also finds that his claim under section 29 (b) of the Law of Succession Act is also insufficient for want of proof. The evidence given by Joyce Mwikali (PW2) is insufficient in my view because she says that the protestor went to her and introduced himself as a son to the deceased and that the attempt to make her brother (the deceased) to accept or acknowledge the protestor as his son was not successful. According to her, her late brother (deceased herein) did not want anything to do with the protestor and that she attended the protestor’s wedding alone after the deceased declined to accompany her to the wedding though they had both been invited.

31. This court finds that the protestor’s claim that the deceased once supported his education with a donation of Kshs 10,000/- is not supported by any evidence

32. The protestor also told this court that his identify card No xxxx which this court saw in court does not reflect the name of the deceased but one Nzivo who is married to his mother. Further to this, his birth certificate serial no xxxx issued on September 12, 2014 shows that Paul Nzivo is his father. He stated in his evidence during trial that he learnt that the deceased was his father in 1999. If that is the case then it makes no sense that in 2014 through late registration, he acquired a birth certificate showing that Paul Nzivo as his father. The protestor’s claim in light of the above cannot be sustained.

33. He has urged this court to fund that only a DNA test would determine whether he is a biological son of the deceased or not but that plea in my view is belated and is without basis. A party seeking for DNA must establish basis for the same grant. The administratrix submitted that the protestor did not comply with a consent order for DNA test dated September 20, 2018 and though this court was unable to establish who was at fault in failure to comply with the DNA test, I still find that a claimant must lay a basis for an order of DNA test to be conducted. He bears the burden of proof.

34. While deliberating on the question of whether a court can order for sibling DNA testing, Aroni, J (as he then was) in MW & 3 others vs DN [2018] eKLR held as follows;‘Whereas there is consensus on matters of children and the quest to establish paternity often citing the best interest of the child, as relates to whether DNA testing on matters involving adults some of whom are non-consenting, the issue remains moot, there is yet no consensus.One school of thought is that for an order for DNA test to be made, a basis must be laid; a nexus or connection between the applicant and the person the order is being sought against must be established.The other school of thought is that DNA test is to be allowed in fact finding, to establish the truth and reach a just conclusion even where no nexus or connection has been established, if the need is eminent.'

35. This court subscribes to the former school of thought in view of the circumstances obtaining on this matter. The protestor states that he was 25 years of age when he met the deceased in 1999 which means he is around 47 years of age at present. When someone of that age comes to stake claim on a deceased person’s estate long after the demise of the deceased, a court should treat the claim with caution. This is because estates of deceased persons need protection against intermeddlers and other persons who out of mischief emerge from nowhere after demise of deceased persons to claim a stake on such estates even where they have no nexus with the deceased persons.

36. The protestor should have applied for a DNA sample of the deceased to be taken and preserved before his burial for purposes of conclusive DNA analysis. Coming 8 years after the demise and burial of the deceased asking for DNA from the children of the deceased is both belated and speculative. This court is not persuaded to make such orders at this stage because as I have found out above, the protestor has not laid sufficient basis to claim inheritance rights over the estate in this cause. His protest fails for want of proof. Consequently, this court finds that the objection raised to the summons for confirmation of grant dated August 31, 2021 fails for the aforestated reasons. The grant issued on September 26, 2020 is hereby confirmed as per distribution list dated September 1, 2021 annexed to the affidavit in support of the confirmation of grant because all the children of the deceased have consented to the said form of distribution. I shall not make orders as to costs so each party to bear own costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 9TH DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE