[2020] KEHC 6842 (KLR)

[2020] KEHC 6842 (KLR)

The High Court held that the trial court was correct in exercising its power under section 70 of the Law of Succession Act to order DNA testing suo moto, as the evidence on paternity was inconclusive and the issue was central to the dispute. The court found that both parties were given an opportunity to be heard on...

Source-derived case information.

Citation
[2020] KEHC 6842 (KLR)
Parties
Appellant: LMG; Appellant: NNM; Respondent: HMK; Respondent: NWK
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Case Number
Civil Appeal 109 of 2016
Procedural Posture
Civil Appeal / Judgment
Outcome
Appeal allowed in part; matter referred back for confirmation of grant and equal distribution.
Legal Topics
Succession, Confirmation of Grant, Paternity Disputes, Distribution of Estate, Dependants Rights
Source Language
en
Family and Children Succession Confirmation of Grant Paternity Disputes Distribution of Estate Dependants Rights

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Summary, issues, holding and outcome

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Parties

LMG

Appellant

NNM

Appellant

HMK

Respondent

NWK

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the trial court erred in ordering DNA testing suo moto to determine paternity of the respondents.
  2. 2 Whether the respondents are children of the deceased and entitled to a share of the estate.
  3. 3 Whether the trial court correctly exercised its discretion under sections 27 and 28 of the Law of Succession Act in distributing the estate.

Ratio Decidendi

The High Court held that the trial court was correct in exercising its power under section 70 of the Law of Succession Act to order DNA testing suo moto, as the evidence on paternity was inconclusive and the issue was central to the dispute. The court found that both parties were given an opportunity to be heard on the DNA issue, satisfying the requirements of natural justice. However, the trial court erred by failing to ascertain the total acreage of the estate and by distributing a fixed portion (1.5 acres) to the respondents without a clear basis or consideration of section 38, which requires equal distribution among all children. The High Court set aside the specific distribution...

Court Disposition

Appeal allowed in part; matter referred back for confirmation of grant and equal distribution.

Orders

  • The cause is referred back to the Magistrates’ Court at Githunguri for confirmation of grant to enable the administrators distribute the deceased’s estate.
  • The Magistrate’s Court shall ascertain the acreage of the suit property and share it equally among the deceased’s children in line with section 38 of the Law of Succession Act.