[2019] KEHC 7486 (KLR)
The court determined that, given the age of the matter and the consensus among most parties, it is reasonable and efficient to subject only the two individuals whose paternity is in question—Willy Kihara and Clint Mathenge—to a sibling DNA test with selected acknowledged children of the deceased. Subjecting all...
Source-derived case information.
- Citation
- [2019] KEHC 7486 (KLR)
- Parties
- Petitioner: Jane Gathoni Muraya Kanyotu; Respondent: Mary Wanjiku Kanyotu; Respondent: Christopher Ngata Kanyotu; Respondent: Andrew Peter Ngirici; Respondent: John Kariuki Kanyotu; Respondent: Sandra Njau Kanyotu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1239 of 2008
- Procedural Posture
- Succession Cause / Interlocutory Ruling on Identification of Beneficiaries and DNA Testing
- Outcome
- Interlocutory orders issued for DNA testing of specific individuals to determine beneficiary status.
- Judges
- A Ali-Aroni
- Legal Topics
- Succession, Beneficiary Identification, Dna Testing, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Gathoni Muraya Kanyotu
Petitioner
Mary Wanjiku Kanyotu
Respondent
Christopher Ngata Kanyotu
Respondent
Andrew Peter Ngirici
Respondent
John Kariuki Kanyotu
Respondent
Sandra Njau Kanyotu
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling on Identification of Beneficiaries and DNA Testing
Legal Issues
- 1 Who are the rightful beneficiaries (children) of the estate of James Kanyotu.
- 2 Whether Willy Kihara and Clint Mathenge are biological children of the deceased and thus beneficiaries.
- 3 Whether all children should be subjected to a fresh DNA sibling test or only those whose paternity is in question.
Ratio Decidendi
The court determined that, given the age of the matter and the consensus among most parties, it is reasonable and efficient to subject only the two individuals whose paternity is in question—Willy Kihara and Clint Mathenge—to a sibling DNA test with selected acknowledged children of the deceased. Subjecting all other children, whose paternity is not disputed, to a fresh DNA test is unnecessary and would only delay the proceedings. The court further directed that the DNA test be conducted at Lancet Laboratory, with costs to be met by the estate, and that the results be presented to the court for further directions. This approach balances the need for certainty in identifying beneficiaries...
Court Disposition
Interlocutory orders issued for DNA testing of specific individuals to determine beneficiary status.
Orders
- Clint Mathenge, Willy Kihara, John Kariuki, Sandra Gathoni, and Christopher Ngata to undergo a sibling DNA test at Lancet Laboratory on Ngong Road on 15th May 2019 at 10:00 a.m.
- Costs of the DNA test to be met by the estate.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 1239 OF 2008
IN THE MATTER OF ESTATE OF JAMES KANYOTU (DECEASED)
JANE GATHONI MURAYA KANYOTU........PETITIONER/RESPONDENT
VERSUS
MARY WANJIKU KANYOTU.............................................1ST RESPONDENT
CHRISTOPHER NGATA KANYOTU................................2ND RESPONDENT
ANDREW PETER NGIRICI................................................3RD RESPONDENT
JOHN KARIUKI KANYOTU..............................................4TH RESPONDENT
SANDRA NJAU KANYOTU...............................................5TH RESPONDENT
R U L I N G
1. This rather contentious matter has passed through the hands ofseveral judges since inception in the year 2008 in a bid to settle the issue of who the beneficiaries of the Estate are; and with consent of the parties, on the 13th of March 2014 Kimaru J made an order requiring all beneficiaries save for George Kimondo who resides in the USA and who was to obtain his DNA samples and send them to Kenya; the other ‘children’ were to present themselves to John Kimani Mungai the Government Chemist at Kenyatta National Hospital at 8. 00 a.m. on the 14th of March 2014. The Estate funds were to cater for ensuing costs.
2. A representative of the Government Chemist appeared in court andpresented the results of the DNA tests which results were objected to by Willy Kiharaand Clint Mathenge on the allegation that not all the ‘children’ appeared in the manner and time scheduled by court and therefore the authenticity of the results were doubtful.
3. On 17th of January 2017 before Achode J three issues wereagreed upon for determination as follows.
i. Identification of the beneficiaries.
ii. Identification of the assets of the estate,and
iii. The mode of distribution.
4. And on the 5th of May 2017 the court directed the matter doproceed and the DNA matter was left in abeyance. As a result some witnesses testified.
5. When this court took over the matter there was consensus thatthe issue of DNA was settled save for 2 ‘sons’ namely Willy Kihara and Clint Mathenge. In issue also was whether Mumbi Mathenge is a widow.
6. The view of this court was that DNA test would result indetermination of who the beneficiaries are and the court will be left to determine the issue of Mumbi Mathenge and thereafter proceed to distribute the Estate. Parties agreed with court, though difference in opinion emerged on how the issue of settling DNA was to be concluded.
7. The Court gave the parties an opportunity to ventilate on theissue. The report of the meetings held by counsel for the parties was inter aliathat the below mentioned beneficiaries were agreed upon as beneficiaries (children) namely,
1. John Kariuki
2. Sandra Gathoni
3. Christopher Ngata
4. Stephen Njau (deceased)
5. George Irungu Kariuki
6. Rose Nyawira Kanyotu
7. Grace Nyawira Kanyotu
8. Christine Njoki Kanyotu
9. George Kimondo
10. Stephen Mutero(deceased)
11. Rose Nyawira
12. George Irungu (deceased)
8. It was also proposed that John Kariuki, Sandra Gathoni andChristopher Ngata, George Kimondo give samples for sibling DNA test with Willy Kihara and Clint Mathenge which proposal was agreed upon save for Mr. Odawa for Clint Mathenge whose view was that all ‘children’ be subjected to a fresh DNA sibling test.
9. It is noteworthy that three places were suggested by rival partiesfor possible DNA Test; the Government Chemist, Lancet Laboratories and KEMRI. However, there were objections to the matter being referred to the Government Chemist due to the objection by Willy Kihara and Clint Mathenge to the 1st report by the said institution, KEMRI was also objected to.
10. Considering the age of the matter and the fact that the relationshipof those claiming to be beneficiaries as children of the deceased must be settled to pave way for distribution and bearing in mind the consensus amongst most of the parties, it is my view that the most reasonable way to resolve the issue is to subject only two children whose paternity is still in issue namely; Willy Kihara and Clint Mathenge to DNA test.
Further it is my view that it is unnecessary to subject all other children whose paternity is not in question to another DNA test.
11. Consequently, I direct that Clint Mathenge, Willy Kihara, JohnKariuki, Sandra Gathoni and Christopher Ngata be subjected to a sibling DNA test at the Lancet Laboratory, on Ngong Road on the 15th of May, 2019 at 10. 00 a.m.
12. Costs to be met by the estate.
13. The report be presented to court on the 5th of June, 2009, whenfurther directions will be issued.
DATED, SIGNEDandDELIVEREDat NAIROBI this 9th DAY OF May, 2019.
…………………………………….
ALI-ARONI
JUDGE