[2018] KEHC 7043 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 2360 OF 2010

IN THE MATTER OF THE ESTATE OF J C G(DECEASED)

JUDGMENT

BACKGROUND

The deceased died on 8thApril 2010

On 25th day of November, 2010 P G C (Objector) filed a Citation and stated as follows:

1. THAT he is a son of the late J C G who died intestate on 8thApril 2010.

2. THAT the said J C G owned properties as follows:

(a) [Particulas withheld] building worth about 2. 4 Million Shillings.

(b) Particulas withheld] Resort - worth about 15 Million Shillings

(c) Vacant plot at Particulas withheld]- worth 1. 2 Million Shillings

(d) Particulas withheld] Building worth 2. 5 Million Shillings

(e) Particulas withheld] Building-worth 15 Million Shillings

(f) Particulas withheld] Plot –worth 1. 5 Million Shillings.

(g) Particulas withheld] 10 acres worth Ksh.600,000/-Thousand Shillings

(h) 3 shambas at Particulas withheld] - 5 acres each worth 2. 2 Million Shillings

(i) 3 Acres at Particulas withheld] occupied by N W-worth 5 Million Shillings.

(j) Particulas withheld] House occupied by H N worth 4 Million Shillings.

3. THAT the said J C G was survived by the following:

1) 1st House- P G C

2) 2nd House- H N C – Widow

G G e – Adult son

A W N – Adult daughter

3) 3rd House- N W C - Widow

J N C - Adult son

D W C - Daughter-minor

L W C - Daughter-minor

T W C - Daughter-minor

The widows of the deceased H N C and N W C entered appearance to citation and filed Petition for letters of administration on 1st March, 2011. The list of beneficiaries was the same as the objector’s List above except that they omitted his name as not being son to the deceased.

The list of assets is much broader than that listed by the Objector.

The Petitioners filed application on 24th June 2011 and sought directions on the way forward. Various parties to the matter swore affidavits and Petitioner and Objector filed List of Witnesses Statements and Documents on 17th July 2013 and the Objector similarly filed the pleadings on 19th November 2010.

HEARING:

OBJECTOR’S CASE:

S N G (PW1) brother to J C G (deceased) relied on affidavit filed on 19th November 2013 and stated; the deceased married Objector’s (P G C) mother T N and after the Objector was 2years old, they parted ways. Thereafter he married H N C and later N W C.

In 1989, the deceased brought back the Objector to his home as his son. In April 1990, a ceremony was conducted, goats were slaughtered and elders Augustine Kamau Mwangi and Prof. Onesmus Mwangi Gichuiri were invited and the deceased’s family; the 2 widows and daughter of the deceased were present.

When the Objector was marrying his 1st wife, J N N, the deceased took him to Githunguri and paid dowry on his behalf for his 1st wife.

When the Objector married the 2nd wife, M K (PW4) again the deceased and both his wives and daughter among other family members took him to Meru and paid dowry on his behalf for his 2nd wife. The ceremony was recorded and the video produced in Court as exhibit.

G W N (PW2) grandson to the deceased, relied on the affidavit sworn on 27th October 2013, in 1989, he was at Mweiga Bar with deceased and 2 men came in and he introduced the Objector as his son. From then on he kept seeing him in touch with deceased. He would drop him at the Dairy where he was a clerk after he visited the deceased and he also visited the deceased at Wilson Airport when he was still working there.

In the same year, 1989 the deceased asked him to pick the Objector and his wife from Githunguri and he brought them to Mweiga in motor vehicle Reg. KWP[Particulas withheld] and they lived there and later he built them a 2 bed roomed house.

In 1998, the Deceased and Objector went to Githunguri and he paid dowry for the Objector’s 1st Wife. They went with deceased’s wife H N 1st wife, M K (deceased) and A K M, friends of the deceased; His brother S N (PW1) was also present at the ceremony.

G G K (PW3) nephew of the deceased (son to deceased’s sister T W G) also relied on the affidavit he swore on 27th October, 2013. In 1990, he accompanied the deceased to a ceremony, it was at Kwa Mbira and he introduced him to the Objector, and he opened the house. In the presence of his family, the deceased said the Objector was his son from a previous marriage. He attended the dowry ceremonies that the deceased conducted for the Objector’s 1st and 2nd wives. At the 2nd wife’s ceremony in Meru, he was Master of Ceremonies and he introduced deceased as father of the Objector, P G.

He also filed an Objection to making of grant filed on 31st July 2015 challenging distribution of suit property Escarpment/Kiserian/Block 1/[Particulas withheld]- 0. 36 haas an asset that comprises of the deceased’s estate available for distribution.

During Cross examination he confirmed that he was Secretary of the deceased’s Funeral Committee and he prepared the minutes of the meeting and Eulogy which were approved and A N deceased’s daughter who brought the designer and printer and paid them to prepare the program and related documents for the funeral. The advertisement of deceased in the Nation newspaper was not agreed on by the Committee.

M K (PW4) 2nd wife to the Objector stated that they married in 1998 and have 2 children; E C G and L N G named after the Objecter’s father and his mother respectively.

She confirmed that her father-in-law and both wives; H N and N W, sister-in-law A W N, Uncles S N, F P and G and their wives, attended her dowry ceremony at Meru. The ceremony was recorded and the video shows that introduction of both families’ was done and the deceased was introduced as father to the Objector, her husband and he paid dowry.

During cross examination she said they paid the deceased Ksh. 100,000/= as he confided in the Objector he had a financial crisis. If they purchased the home the deceased gave them, there would have been an Agreement for Sale.

P G C (PW5) relied on his statement filed on 26th October 2013. He said he is son of the deceased. In 1989 while he worked at the [Particulas withheld] in Limuru, the driver (PW2) came and picked him and took him to J C G (deceased). He was surprised as his mother refused to tell him who his father was. The next time he visited the deceased and found him with W and A. They talked and the deceased told him about how when he was young he was hurt and was injured on the back. He showed him the scars and he believed he was his father. After the meeting, W (PW2) drove him back to his place of work. From then on they met severally.

The Objector’s 1st wife informed him that they had been sent away from his mother and her husband M home after his step father realized he was in touch with the deceased. They moved to his wife’s home in Githunguri. When he informed the deceased, he put them up in Rironi. Later, he built them a 2 bed roomed house on his plot in Kamirithu. They moved to the said house and his 1st family lives there to date. The deceased changed ownership of the Plot where he built his 1st family a home from his name to the Objector’s name in 2009.

The deceased took the Objector to a lawyer who prepared a deed poll and changed his name to include the deceased’s last name. The deed poll is marked as PGC-GGon Pg 30 of the Objector’s bundle filed on 19th November 2013. The Kenya Gazette Notice Number [Particulas withheld]of Change of Nameis also in the same bundleonPg 29 that confirms that P G M changed his name to P G C. On the basis of the deed poll and change of name he subsequently changed his birth certificate details and obtained 2nd generation Identity card with the present name P G C.

The Objector told this Court that he was accompanied by the J G C (deceased) to pay dowry for his 1st wife in Githunguri and his family attended except his 2nd Wife N C. Later, the deceased and his family accompanied the Objector for his 2ndwife’s dowry ceremony in Meru. The deceased and the widows attended the function and were introduced as his parents. A N, the deceased’s daughter carried a kiondo and the event was recorded on video.

The Objector stated that he would not know his biological father, he requested for DNA Sibling testing with all the deceased’s children to confirm paternity by the deceased and settle the dispute as to whether he is son to the deceased or not once and for all. However, from the events and circumstances he had with the deceased, he believes he was/is his biological father.

PETITIONERS’ CASE:

Paul Mburu Muthumbi (DW1) testified that he is head of the deceased’s clan and was Chairman of the deceased’s funeral Committee. Relying on his statement filed on 17th July 2013 he said he knew the deceased for 20 years and knew of his 2 wives and 6 children. He met the Objector for the first time during the funeral preparation meeting when he claimed to be deceased’s son. The members asked him questions and they were not satisfied that his claim was true.

They prepared the Eulogy of the deceased and gave it to PW2 who worked with Nation media and later the version that was printed included the Objector as son of the deceased, which the Committee had not approved and agreed to.

Augustine Kamau Mwangi (DW2) who was the best man to the deceased in his wedding to H N 1st widow said he knew he had 2 children. Later, he took him to marry the 2nd wife N W and she had 4 children, among them J N C who came with his mother and was adopted by the deceased. He said the deceased did not tell him that he was married before and that he had another child. He saw the Objector during the Funeral Committee meeting.

P N G (DW3); younger brother of the deceased stated that the deceased had 2 wives and 6 children only. He met the Objector before but not as the deceased’s son. His late brother asked him to accompany him to go and pay dowry for his friend P G. He attended the function but he did not speak as Chairman of the family.

Although, he appeared in photograph marked PGC-11he did not pose for it and does not confirm anything as the deceased did not introduce the Objector as part of deceased’s family to the rest of the family.

He admitted that P G visited the deceased at Kenyatta National Hospital severally and found the deceased in a coma. The Objector introduced himself as son of the deceased. During the funeral meeting members did not agree that the Objector was son to the deceased.

In cross examination, the witness admitted that he accompanied the deceased on both occasions to pay dowry for the Objector’s wives where the deceased was introduced as the Objector’s father during the payment of dowry ceremony. The deceased identified his daughter by his 1st wife called A as sister to P G, the Objector.

In Cross examination DW 3 admitted that annexed to the Objector’s affidavit filed on 14th October 2011, there is a picture of the deceased and Objector together taken in December 1990 of a function where the deceased handed over keys to a house he gave him. The next picture is one of brothers to the deceased with him and their children among them was P G; the Objector.

M N G (DW5) another brother of the deceased, stated that he lived with their parents in Uganda from 1964 and came back to Kenya in 1976 and in the meantime had left his brother Peter (DW4) in Kenya. He lived with the deceased in Mbotela estate. They all came back to live with the deceased. The deceased had 2 wives; H N who lives in Rironi and N W who lives in Ndeiya between them they have 6 children. He saw the Objector during the funeral preparation for deceased’s funeral; when he attended the meeting and was recorded as P G wa N. He checked documents, audio and photographs to disclose the deceased’s acknowledgement as his son and he did not find any clues. They did not acknowledge him as son of the deceased as he was not introduced as such to the family.

Secondly, his brother, the deceased was a politician and he helped many people including supporting his friend’s children who he registered as dependents at work as Captain in Kenya Airways. He admitted that he did not have a good relationship with the deceased and did not attend any of the dowry paying functions and he is not in the photographs filed in Court. He did not approve the deceased’s style, he was a politician and he invited many people and one could not tell who was who.

Josphat Munuve Kavali (DW6) Registrar from Civil Registry Headquarters Nairobi that deals with issuance and verification of birth and death certificates. He was approached by an Investigating Officer to investigate the birth certificate of one P G C. He checked records and the Register confirmed that the Objector was registered on 18th October 1999 vide entry number [Particulas withheld]at Kikuyu Hospital- Kiambu District. However, there were no authorizing documents as required;

a) Copy of Identity card if person is over 18 years old at the time of registration

b) Both parents identity cards

c) Baptismal Card with date of birth

d) School leaving Certificate

These are the documents that are attached to the document of authority to facilitate issuance of birth certificate. In the Petitioner’s List of Documents is a letter dated 12th June 2012 which confirms that the birth certificate of the Objector Serial number [Particulas withheld] did not originate from Office of the President Ministry of Immigration Department of Civil registration signed by Mr. Bwake- District Civil Registrar –Kiambu. The letter referred to Birth certificate Serial Number [Particulas withheld]and not Serial number [Particulas withheld]. His opinion was that the Objector’s birth certificate was registered in their Registry but not authenticated as the authorizing documents were missing and/or not produced.

N W (DW7) 2nd widow of the deceased relied on her statement filed on 17th July 2013. She stated that she was married in 1990 and had 3 children with the deceased. She came into the marriage with her son J N whom the deceased adopted as his own son/child. She saw the Objector, P G with other boys as they accompanied the deceased as he tried his hand in politics.

In 1991, the witness and co-wife H N, 1st widow of the deceased accompanied the deceased to the objector’s father’s home. He said it was his friend’s father’s home in Muranga and could not recall his father’s name.

Later, the deceased, both widows and family members accompanied the Objector to Meru, to pay dowry for his 2nd wife; M K (PW4). They carried gifts in ‘Kiondo’, they sang traditional songs and the witness carried soda which was handed over with singing and merry making in the Kikuyu customary wedding ceremony.

During the function, the master of Ceremonies was G K (PW3) the deceased’s nephew who introduced him as Captain and he did not speak at the function. When discussions took place, the deceased, his sister called W, and deceased’s brothers went inside the house. She did not know what happened.

She stated that the deceased did not inform her that the Objector P G was his son; she knew him as friend of his nephew G K. The witness saw the Objector visit the deceased while he was admitted in hospital.

During the deceased’s funeral arrangements, the Objector did not attend the first meeting, but attended the 2nd meeting as the minutes show his name as P G wa N.

The funeral announcement and eulogy were not as was agreed at the meetings by the Committee, they were altered to include the Objector.

A W N (DW 8) daughter of the deceased stated that she has only 5 siblings, brother, G G C from their mother, H N C. She has 4 step siblings from step mother, N W C. She knew P G C as friend to her cousin G K, who called her to accompany his friend, the Objector to Meru to marry his 2nd Wife. The Objector was brought up by her father, the deceased. At the function, the Objector paid dowry for his 2nd wife and it was a ceremony of food served and speeches.

She did not see the Objector until, her father fell ill and he was admitted in Avenue Hospital, M.P Shah Hospital and it is at Coptic Hospital that she saw the Objector visit the deceased.

During the deceased’s funeral meetings of 21st April 2010 and 19th November 2010, respectively, the family members identified the deceased’s properties and sought to settle outstanding debts of water and electricity bills. The Financial obligations were settled by the witness as shown by letter dated 29th October 2010, where she paid loan repayments of Kshs 130,000/= and the remaining balance of Kshs 128,448/= her brother G G C who resides in US and herself cleared the debt.

She took care of her late father while he was ailing, taking him to hospital at times at night and settling the medical bills as they also preserved the properties. In all this, the Objector did not contribute or participate. Therefore he cannot be appointed administrator of the deceased’s estate or be confirmed as child/son of the deceased.

Although the Death & Funeral Announcement published in Daily Nation of 14th April 2010 includes the name of Objector, P G C and the Eulogy attached to Objector’s bundle also mentions the Objector’s name as son/child of deceased, these facts were added by the deceased’s cousin G K contrary to the Funeral Committee’s position.

H N W (DW 9) 1st widow of the deceased, stated that she was married under customary law in 1965 and solemnized their marriage in church in 1969. They had 2 children, A W and G G. In 1991, the deceased married the 2nd widow, N W in 1991 and they had 4 children.

She knew P G, the Objector as one who bought the Plot at Limuru –Kwa Mbira, that the deceased sold in 2005 and the deceased through his 2nd wife paid through a cheque Ksh 100,000/=

She confirmed that they accompanied her late husband, to Meru for the dowry ceremony of the Objector for his 2nd wife. During the ceremony, the deceased was introduced as Baba G and herself as Mama G and they have a son called G G. They did not do anything else.

The witness stated that the photographs in pages 37 of Objector’s bundle she is in the said photographs dressed in a red jacket and it was taken during the deceased’s trial in politics. The photograph at page 40 of Objector’s bundle, she accompanied her late husband to the Objector’s father’s funeral.

During the funeral meetings, the Objector demanded to be recognized as a child of the deceased. She refused and stated that her late husband took care of many children, there was no reason why he failed to tell his family and friends that the Objector was/is his son/child.

ISSUES FOR DETERMINATION;

At the close of the hearing, the pleadings and evidence adduced in Court, the issues that emerge for analysis and determination are;

a) Is the Objector, P G C child/son of the deceased J C G?

b) Is the Objector one of the beneficiaries of the deceased’s estate?

c) Who should be/are administrators of the estate of the deceased?

d) Should the Objector be appointed one of the administrators/or inherit any beneficial interest from the deceased’s estate?

DETERMINATION:

This Court finds that the standard and burden of proof provided by the Evidence Act Cap 80 ought to be discharged; he who alleges must prove.

Section 107 of the Evidence Act Cap 80 of the Laws of Kenyaplaces the burden of proof upon the party that alleges.

The Petitioners submitted that;

“It is incumbent upon the objector to prove that his mother was married to the deceased and that he is a product of the said union of the deceased and his mother.”

They relied on the case;

Hon. Mr. Justice Mativo in the ESTATE OF STANLEY KORI KIONGO ALIAS KORI KIONGO (DECEASED) [2016] EKLR in a similar issue stated the following:

“More important to note is the fact that the protestors carefully avoided to call their father, a son to the deceased as a witness, and a very key witness in this case claiming that he was ailing though no evidence was tendered to support this fact. The omission to call such a crucial person cannot be ignored in considering the core dispute. The Petitioners’ case is that all the children of the deceased had agreed to the distribution including the protestors’ father whom the protestors carefully avoided to produce in court claiming that he was old and ailing. I note that no medical or tangible evidence to support his inability to appear before the court, hence the court was denied the opportunity to verify this fact. This inevitably leaves open to the court to conclude that the evidence of the protestors’ father would have been adverse to their case, hence the reason why they carefully omitted to call him.”

The petitioners are of the view that;

Therefore, the fact that the Objector did not call his stepfather, biological mother and/or step siblings to confirm his paternity, he did not prove his claim as son of the deceased and did not discharge the burden of proof. The absence of the witness (es) evidence should make this Court draw the inference that the witness (es) would have adduced adverse evidence to the Objector’s claim.

In RESTATEMENT OF AFRICAN LAW KENYA VOL 1 THE LAW OF MARRIAGE AND DIVORCE on the essentials of a valid Kikuyu marriage, EUGENE COTRAN concludes that:

“No marriage is valid under Kikuyu law unless the ngurario ram is slaughtered” and that “there can be no valid marriage under Kikuyu law unless a part of the ruracio has been paid.”

The Objector did not adduce evidence that his mother was married by the deceased under Kikuyu customary law and that the essentials of the customary were fulfilled.

Instead what the Objector deposed in his affidavit and testified in Court is that he was told by the deceased that he was his son born in Rironi in 1966. (Paragraph 3 of the Objector’s Affidavit of 19th November 2013). The Objector claims further that the deceased had married his mother one T N in 1966 and were separated and that his mother remarried one Mr. M, who brought up the objector up to the age of 23 years old. (Paragraphs 1 and 5 of the Objector’s Affidavit). The Petitioner claimed that the allegation was not proved by evidence on record.

The Objector deposed in his affidavit and testified that his adopted father Mr. M took parental responsibility of him up to the age of 23 years old, when he went to meet the deceased. There was no evidence or claim by the objector that the deceased had assumed parental responsibility before he was 23 years old. Therefore, the deceased’s contact with the Objector thereafter did not amount to parental responsibility over the Objector so as to construe him a child of the deceased.

In the case of EMM vs. I.G.M & Another [2014] eKLR;

Court of Appeal Judges at page stated the following:

“….Nor can the mere use of the name M by the Appellant lead to the conclusion that he was the son of the deceased….”

This Court considers the following;

DOCUMENTS:

With regard to the Objector’s documents of proof; The Petitioners averred that the Objector obtained his birth certificate 33 years later. The Objector’s Identity Card was obtained on 8th September 2010 at page 73 of the Objectors documents yet Captain John Chege Gitau died on 8th April, 2010 as shown by document presented PGC 30 at page 69 of the Objector’s documents.

The Objector’s Kenya Revenue Authority PIN Certificate was issued on 15th July, 1997 even before the issuance of the Birth Certificate at Page 72 of the Objector’s Documents.

The Objector’s testimony is that he changed names from P G M to P G C on 3rd June 1993 at Limuru Registration Centre after the deceased took him to a lawyer and signed deed poll dated 17th December 1990 accompanied by statutory declaration of the same date and are annexed to his affidavit of 19th November 2010 as PGC-GG.

He went to obtain the 2nd generation ID card and was registered as P G M and he returned it to be corrected and was issued with Receipt B493951. After several visits and enquiries at the Limuru Registration Centre he was referred to Nairobi and was referred back to Limuru.On 13th November 2007 he reapplied again for change of names and issuance of new ID and was granted on 19th August 2010 as annexed to his affidavit and marked PGC-GG.

This Court finds the explanation by the Objector plausible as the deceased participated in change of name by the Objector, by taking him to an advocate and he signed the deed poll that was the basis of the Objector’s change of name and issuance of ID card. In spite of the anomaly of documents processed after the deceased’s death, the deceased had voluntarily initiated contact with objector and helped him change names. This fact is not vitiated by the change of Birth Certificate letter.

SUIT PROPERTY KAMIRITHU/T 225

H W C 2nd widow of the deceased disputed that property Kamirithu/[Particulas withheld]had been gifted to the Objector. Instead she stated that the same was sold so as to offset debts that the deceased had incurred. She made reference to the letter dated 11th March, 2005 at Page 21 of the Objector’s Documents which letter requested the Objector to purchase the Properties listed which included Kamirithu/[Particulas withheld]. On 24th March, 2005, the Objector through his wife, duly issued a cheque in favor of the deceased as annexed as Page 19 – 20 of the objector’s documents.

Secondly, she stated that the objector cannot purport to have been built a house on Kamirithu/[Particulas withheld]in 1990 yet pay for the said property on the year 2005.

The Objector attached to his affidavit of 19th November 2013 the copy of title to suit property Limuru/Kamirithu/[Particulas withheld]marked “PGC - EE” copy of title and letter from the bank. Copy of Title is dated 27th March 2009 whereas in 1990 the deceased built the Objector 2 bed roomed house, he gave him house and the land during a ceremony shown by photograph marked PGC-CC annexed to the affidavit. He also attached utilities bills of the said property in his name attached as PGC-DD.

The Petitioners stated that the deceased sold to the Objector the said land as demonstrated by Objector’s payment of Kshs 100,000/=.The Objector stated in evidence that the money paid by his 2nd wife to the deceased was to help him service a loan. He asserted that if the land was sold to him, then there ought to have been an agreement for sale produced to prove this fact.

At the close of the hearing, the Agreement of sale was not produced, in the absence of which logically and reasonably from the facts on record this Court finds that the Objector was given house and the land as a gift from the deceased.

This Court has confirmed there is a letter dated 11th March 2005, where the deceased wrote to P.Gitau (Objector) that;

‘’the Limuru Bank was selling the following properties to recover loans they gave the deceased. The Properties are;

1) Thigio/Nduma Plot No [Particulas withheld]

2) Limuru/Kamirithu/Plot No [Particulas withheld]

3) Tigoni Plot No [Particulas withheld]

Each of the above value is over Ksh 2 million and we owe the bank Ksh 800,000/-increasing with interest. If we pay half, they will give us time, I am intending to sell any of this going fast.’’

The import of the letter is that it is the bank as shown by Notification of Sale on Pg 22 that intended to sell the listed properties to recover loan repayments that were in arrears. The deceased sought a stopgap measure by payment of at least ½ of the Ksh 800,000/= balance of loan so as to give him time to sell the other listed properties and settle the balance of the loan.

The Objector through his 2nd wife M K by letter dated 23rd March 2005 requested KCB Savings & Loan, Salama House Branch to issue banker’s cheque of Ksh 100,000/= to Mr. J C G (Deceased). A copy of the cheque is on Pg 20 of the Objector’s affidavit.

These documents confirm that the deceased informed the Objector of the urgent and intricate matter as a member of his family and not as a buyer and he specifically sought financial assistance of the loan pending him selling other properties to clear the balance of the loan as stipulated in the said letter.

In fact this view is fortified by this line at the end of letter of 11th March 2005;

“When I sold Isenya, you said that you were not informed. Thus, should you want to pay or buy, let me know before 15th March 2005”

The letter by the deceased to the Objector was/is to seek financial help in form of purchase of any or all properties listed or to defray the loan so as to give him time to sell other property to clear balance of the loan. Therefore in the absence of Sale agreement, this Court finds that the deceased sought financial help from the Objector which he provided to the best of his ability.

PHOTOGRAPHS &NEWSPAPER FUNERAL ANNOUNCEMENT & FUNERAL PROGRAM:

The Petitioners objected that the newspaper funeral announcement at pg 55 of Objector’s bundle and Eulogy at Pg 46 of the same bundle and funeral program were unilaterally amended by G G K who had been tasked with said announcement and program. The Objector’s name as son of the deceased and of his children as grandchildren of the deceased, in the newspaper funeral announcement and funeral program, were irregularly added.

G G K was then a Senior Manager at the Nation Media, hence the reason why he had been tasked with the above responsibilities. The Petitioners and other members of the deceased’s family only noticed the same in the newspaper and in the eulogy at the time of the funeral.

The Petitioners claimed that the image marked PGC JJit is not conclusive on what sort of gathering was taking place.

This Court agrees with the Petitioners assertion that content of the newspaper announcement, eulogy and funeral program were not agreed upon by all family members as stated in testimonies in Court and the Minutes of the Meetings by the Family as annexed at Pg 59-62 of Objector’s bundle. The Petitioners claim that if he was son of the deceased then why did the deceased not inform any of his wives, children and brothers that the Objector was his son?

The Objector claims that the deceased initiated contact with him through his brother (PW1) and grandson (PW 2) and later on the deceased informed G G K (PW3) that the Objector was/is his son. So it is on the basis of adduced evidence that the issue of whether the Objector is the deceased’s son or not and not on the basis of inclusion of Objector’s name and his family in the deceased’s announcement, Eulogy and Funeral Program.

EVENTS:

The Objector attended A W N wedding, he attended the ceremony to introduce him as his son to family and friends in 1990 as shown by photo marked PGC-BBand was housed by the deceased in the suit property Limuru-Kamirithu/[Particulas withheld]as shown by photo PGC-CC.

The deceased and family accompanied the Objector to pay dowry for his 1st wife and 2nd wife as shown by photos PGC-JJ and video played in Court. When his father in law died, the deceased mobilized his family and they attended his funeral as photo marked PGC-KK shows.

The Objector visited the deceased while he was ill and after his death participated in the burial.

The Petitioners object that the Objector attended the ceremonies as son of the deceased because; the Photographs that show the deceased’s family and Objector do not confirm anything as one can attend a ceremony without being a relative. The Petitioners objected to the photographs that by themselves they do not confirm any fact and do not establish paternity. Anyone could attend any function on invitation as family or friend. The Petitioners claimed that G N who informed the Objector of deceased being his father was not called to testify in Court. The Objector’s mother was also not called to testify as to her marriage to the deceased and the Objector’s biological father.

The Objector confirmed that he lived with his mother, T N and father M until he met the deceased, who informed him that he was his father. He did not believe him but he told him that when he was young he was hurt and he had scars on his back and he confirmed the same to be true.

When he attended A W wedding and his step father, M knew of this, he was furious and he was sent away. Therefore, it is presumed in the circumstances, he could not call his mother to testify due to the prevailing hostility. The said G N admittedly did not testify and no mention was made as to his whereabouts and cause for non- attendance. It is not clear whether the Objector meant PW2 G W N whom he said in his testimony in Court, that he came to him one morning and asked him to go and meet the deceased.

This Court finds that it is not disputed that the deceased initiated contact with the Objector, P G C and the subsequent activities outlined above strongly suggest that the deceased found the Objector his son. Therefore, in spite of certain persons of interest not being called as witnesses, the evidence adduced by the witnesses who testified leads to the fact of the Objector being the deceased’s son.

VIDEO RECORDING:

On 29th August 2016, the parties through Counsel contested the admission of video recording as evidence in Court. Counsel for the Objector sought the video recording of the dowry ceremony of the Objector’s 2nd wife held in Meru to confirm whether the deceased was introduced as father of the Objector.

The Petitioner’s advocate objected to production of the video evidence as the maker was not in Court.

The Objector’s advocate confirmed that the maker was the Objector’s 2nd wife’s sister, J M who was available to testify that she hired the video cameraman to record the dowry ceremony.

The objection was withdrawn and on 28th October 2016, ICT/Judiciary Personnel played the video in open Court in the presence of Counsel and family members and parties to the proceedings.

In a nutshell, the Objector identified from the video;

1) the bridal party,

2) parents of his 2nd wife M K and

3) siblings and lastly

4) His wife as last born child of the family.

From the Objector’s family, the Master of Ceremony G G K introduced

1) The Objector as groom.

2) Then he introduced D W G as the oldest lady present;

3) Captain J C G (deceased) as father of G,

4) Mama S the deceased’s 1st wife/widow N W C;

5) Mama G the deceased’s 2nd Wife/widow H N

6) P N G & his wife Mama C - brother to deceased

7) S N G; his wife - Mama W and family-(brother to the deceased)

8) T W G - Sister to deceased.

A W N (DW8) stated that she was invited by her cousin G K to accompany him to his friend’s dowry ceremony in Meru and that is where she saw the Objector, P G C. She admitted she had the kiondo at the ceremony.

N W C (DW7) 2nd widow of the deceased confirmed they accompanied the deceased to Meru to pay dowry for deceased’s friend 2nd wife. They carried gifts in ‘kiondo’ and she carried soda and they sang traditional songs. Those who went inside the house to discuss dowry were the deceased, his sister W, and his brothers. She did not know what happened inside the house.

H N (DW9) 1st widow of deceased stated she knew the Objector as one who bought Plot Limuru-Kamirithu/[Particulas withheld]and issued through his wife cheque for Ksh 100,000/-in 2005. She reiterated that in Meru the Objector’s dowry ceremony, they were called Baba and Mama G and they stood up and did not do anything else. They have son called G in the US.

Paul Mburu Muthumbi (DW1) head of clan Augustine Kamau Mwangi (DW2) close friend to the deceased, P N G (PW3) & M N G (DW4) brother’s of the deceased all deny the Objector is Deceased’s son.

Yet S N G (PW1) brother of the deceased said they were brought up in Mabruki and the deceased married the Objector’s mother and they separated when the Objector was 2 years old. G W N (PW2) deceased’s grandson and G G K (PW3) deceased’s grandson confirm that the deceased approached the Objector and the ceremony was held to introduce the Objector to rest of the family as deceased’s son.

The totality of the evidence on record is that the deceased’s family have given parallel facts as to the issues for determination. After this Court watched the video recording in their presence, I am satisfied the deceased is father of the Objector because; under Kikuyu customary law the ‘father’ of the son pays dowry for his son. In this case the deceased was introduced at the dowry ceremony of the Objector’s 2nd Wife as father of the Objector ‘G’ and he stood up with both wives/widows. Although it is contested the deceased was referred to Baba G because he has a son G by 1st wife/widow in US; the ceremony in Meru was not to introduce all those who attended the function, but all relevant parties to the ceremony, bride, groom, parents on both sides of family and family members of the bride and groom’s family. Whereas it is admitted the deceased has a son G brother to A W, in this occasion Baba G referred to groom’s Father, as the ceremony did not involve G G who resides in United States.

It is also curious to note that the deceased was accompanied by his wives, siblings and their spouses, grandchildren and mother to Meru for the Objector’s dowry payment ceremony. If the Objector was just a friend or acquaintance from business or politics as alleged by part of his family, how did he rally all family members to travel to Meru and support a friend? The video depicted heavy presence and participation of the deceased’s family which is only natural where the Objector is a family member and not an acquaintance.

DNA TESTING:

The Petitioners challenged the Objector that he did not shift the burden of proof in support of his claim that he is the son of the deceased. The objector had the opportunity to file an application to have a DNA test conducted against the deceased’s children but opted not to. In fact, the Objector in his affidavit filed on 19th November, 2013 further alleged that A W N and his brother G G C are not the deceased’s daughter and son respectively.

The Court record confirms as follows;

On 23rd February 2015, Counsel for Objector applied to Court as deponed in Objector’s Affidavit at Paragraph 35 for DNA testing and it is Counsel for petitioners who objected to DNA testing or exhumation of deceased’s body. The Court directed the parties to discuss the matter with a view to amicable agreement on how to carry out DNA testing.

During cross examination of Alice W N (PW8) daughter of the deceased by 1st wife /widow, she declined DNA testing but demanded that the Objector ought to have DNA testing as his paternity is the one in question.

The DNA testing without exhuming the deceased’s body, would be possible through Sibling DNA testing for all children of the deceased to determine paternity. It would not be possible if siblings decline to be tested.

Therefore the Petitioners assertion on DNA is not borne out by the evidence on record.

CONCLUSION

Section 3 (2) of Law of Succession Act Cap 160 of the Laws of Kenya provides:

“References in this Act to “child” or “children” shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born of her out of wedlock and in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility”.

After considering the evidence adduced by parties; this Court finds that it is not in dispute that the Objector was seen, known and involved with the deceased and the family members for a long time before the deceased’s death. The ceremonies, functions, photographs and mostly video recording, the evidence cumulatively tilts in the absence of DNA testing on a balance of probabilities that the Objector, P G C was expressly recognized and in fact accepted as a child of his own by the deceased as confirmed by PW1 PW2 & PW3 and required under Section 3(2) of Law of Succession Act Cap 160. The deceased initiated contact with the Objector in 1989 through emissaries, in 1990 a ceremony to introduce him to the family was conducted. The deceased took the Objector to an advocate and he deponed and signed a deed poll to allow the Objector change his name to P G C from P G M. He helped the Objector to relocate from his mother and stepfather’s home to where he housed him and 1st family in Plot Limuru-Kamirithu/[Particulas withheld]and transferred the same to him before his demise as confirmed by the Certificate of Title.

The issue of proof of the Objector’s mother’s marriage to the deceased is not a requirement under Section 3(2) of Law of Succession Act Cap 160 and does not preclude the Objector’s right to the deceased as his father in the absence of proof of marriage.

The Petitioners claim that the Objector was/is an illegitimate child as provided by the High Court in Re: Carey Kihagi Muriuki [2000] eKLRstated the following on illegitimate children:

“Children of a void or voidable marriage are illegitimate but by Section 3 (5), if their mother went through a customary marriage, the children would be deemed legitimate and would be dependants under section 29 (a) LSA.

But there are other classes of illegitimate children as distinct from illegitimate children born out of an invalid marriage. They could be issues of a relationship of a man and woman who do not eventually marry. Those children would NOT qualify as dependants unless the father had recognized or accepted them as children of his own or he had voluntarily assumed permanent responsibility over them”

This authority is before the advent of Constitution of Kenya 2010 whose Article 27(1) and (4) and 53 (1) (e) prescribes nondiscrimination on the basis of birth and that each child is entitled to provision from father and mother whether married or not. The provisions provide as follows:

27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law…….

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

53. (1) Every child has the right—

(e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not;

Therefore cumulatively save for DNA testing the evidence on record is that the Objector is the deceased’s son due to the activities the deceased took to retrieve his son from step-father and mother. Whether there was marriage between deceased and Objector’s mother, it is not a prerequisite under Law of Succession. Whether the Objector was illegitimate, again it is not relevant now by virtue of Constitution of Kenya 2010.

DISPOSITION

1) The Objector P G C is child/son of J C G (deceased) on balance of probabilities and siblings are at liberty to undergo Sibling DNA testing for proof beyond peradventure of the Objector’s paternity within 90 days from today.

2) The Objector P G C is a beneficiary to the estate of the deceased’s estate

3) In exercise of Section 66 of Law of Succession Act Cap 160 the administrators of the deceased’s estate shall be the surviving widows of the deceased namely H N C and N W C jointly. A grant shall be issued in their joint names to administer the deceased’s estate.

4) The Objector P G C as beneficiary shall obtain beneficial interest to the estate of the deceased J C G.

5) In default of DNA within the requisite period, the administrators shall include the Objector as one of the beneficiaries to the estate of the deceased; shall in consultation and his consent with other beneficiaries consents file summons for confirmation

6) In default of agreement and/or consent to mode of distribution of the deceased’s estate to ALL beneficiaries; the aggrieved party/Parties shall file Affidavit (s) of Protest (s) for the Court to determine

7) Each party shall bear its own Costs

DELIVERED SIGNED & DATED IN OPEN COURT ON 7TH MAY 2018

M.W.MUIGAI

JUDGE OF FAMILY DIVISION OF THE HIGH COURT

IN THE PRESENCE OF:

MR WANDAKA FOR OBJECTOR

MR.WILSON FOR PETITIONERS