[2023] KEHC 25409 (KLR)

In re Estate of John Samwel Gachuma Mbugua (Deceased) (Succession Cause 687 of 2020) [2023] KEHC 25409 (KLR) (Family) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25409 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 687 of 2020

EKO Ogola, J

November 14, 2023

IN THE MATTER OF THE ESTATE OF JOHN SAMWEL GACHUMA MBUGUA (DECEASED)

Between

Esther Wanjiru Karumbo

1st Objector

Margaret Wangari Ng’ang’a

2nd Objector

and

Pauline Wairimu Gachuma

1st Administrator

George Mbugua Gachuma

2nd Administrator

Boniface Gikura Gachuma

3rd Administrator

Ruling

1. The deceased died intestate on 2nd May 2020. It is said that he was survived by his widow Pauline Wairimu Gachuma, four sons and a daughter namely; George Mbugua Gachuma, Antony Kamau Gachuma, Caroline Wanjiru Gachuma, Boniface Gikura Gachuma, and Andrew Muruga Gachuma. Grant of letters of administration intestate was issued on 23rd February 2021 to Pauline Wairimu Gachuma, George Mbugua Gachuma, and Boniface Gikura Gachuma.

2. On 26th February 2021, the 1st objector filed an application where she prayed that the court should grant her leave to object to the making of the grant. On 2nd June 2021, the court directed the administrators to file and serve their summons for confirmation of grant within 14 days and for the 1st objector to subsequently file and serve her protest. On 13th July 2021, the administrators confirmed non-compliance of filing Summons for confirmation since there were ongoing negotiations between the parties. The court ordered the administrators to file and serve the said summons and for the 1st objector to file her protest.

3. The 1st objector filed an application dated 17th September 2021. She prayed for the following orders:-a.That the grant of letters of administration intestate made on 23rd February 2021 and given to Pauline Wairimu Gachuma, George Mbugua Gachuma, and Boniface Gikura Gachuma be revoked.b.That the cost of this application be borne by the administrators of the estate of the late John Samwel Gachuma Mbugua.

4. The application was based on the grounds set out therein and the supporting affidavit of the 1st objector. She deposed that the three administrators failed to comply with the court’s directions dated 2nd June 2021 to file and serve summons for confirmation of grant so that she could be able to file her affidavit of protest. According to the 1st objector, the administrators are intentionally stalling the succession proceedings and are intermeddling with the estate. It’s for these reasons that she prays for the grant to be revoked.

5. On 8th October 2021, the administrators filed their Summons for confirmation of grant. When the matter was before the court on the same day, the court directed that the application for revocation of grant filed by the 1st objector be substituted by an Affidavit of protest.

6. There is an Affidavit of Protest dated 1st November 2021 filed by one Margaret Wangari Ng’ang’a. She deposed that on 5th June 2016 she gave birth to JAW, a son she had sired with the deceased. She further deposed that the deceased was the sole provider of the child and who is therefore a beneficiary of the deceased estate. She added that the administrators misrepresented and concealed material facts from the court when they obtained the grant.

7. The 1st objector filed a second application dated 25th November 2021. She prayed for the following orders:-a.Spent;b.That Jowanga Holdings Ltd be enjoined in these proceedings in the first instance.c.That the 2nd and 3rd petitioners/respondents; George Mbugua Gachuma and Boniface Gikura Gachuma who are children of the deceased do submit to DNA tests through matching samples to be extracted from their bodies against samples to be extracted from the body of the applicant/objector; Esther Wanjiru Karumbo to prove her paternity.d.That the DNA test be done by KEMRI, PATH care Kenya Ltd of LANCET Kenya or any other body the court may deem fit.e.That the petitioners/respondents file a complete inventory of the estate of the deceased within a period to be determined by the honourable court pending the hearing and determination of this application which inventory should be in strict compliance with Section 83(h) of the Law of Succession Act including but not limited to:-i.Detailed financial statements of Jowanga Holdings Ltd for the period in question together with supporting documentation;ii.All bank statements for all accounts of Jowanga Holding Ltd for the period in question;iii.All bank statements for all accounts of the deceased for the period in question;iv.Accounts of all transactions undertaken, payments made, and funds received and expenditures incurred on behalf of the estate;v.All transactional documents for the disposal of any property belonging to the estate including agreements for sale and transfer documents;vi.Schedules of all rental incomes from the entire estate for the period in question noting to include any tenancies/occupation that did not attract rental income;vii.Details of all properties of the deceased which were not subject to the administration process including his motor vehicle noting to attach copies of the log book;viii.Copies of all title documents for the properties of the estate noting to avail the originals for verification by this court at an appointed time;ix.Any other document required in order to comply with section 83(h) of the Law of Succession Act.f.That parties agree on a qualified accountant to undertake the audit of the books of accounts relating to the estate of the late John Samwel Gachuna Mbugua.g.That the cost of the application be borne by the administrators of the estate of the late John Samwel Gachuma Mbugua.

8. The application was based on the grounds set out therein and the supporting affidavit of the 1st objectors. She deposed that she is the daughter of the deceased and she is willing to conduct a DNA test to confirm her paternity. The 1st objector further deposed that a child of the deceased is a dependant of the deceased whether or not maintained by the deceased during his lifetime. According to the 1st objector, she is well known to the extended family and hence, not a stranger as alleged by the administrators. She averred that the administrators have actively alienated her from the affairs of the estate and are also intermeddling with the said estate.

9. The 1st objector filed a third application is dated 30th June 2022. She prayed for the following orders:-a.Spent;b.That this honorable court be pleased to order the rectification of the register by the Ngong’ Land registrar in respect of the property known as LR No. Ngong/Ngong/15749 belonging to the deceased which has fraudulently been subdivided into LR No. Ngong/Ngong/99627, Ngong/Ngong/99628, Ngong/Ngong/99629, Ngong/Ngong/99630 and revert it back to LR No. Ngong/Ngong/15749 which belongs to the deceased John Samuel Gachuma.c.That a preservatory order do issue restraining the petitioners/respondents by themselves, their agents or servants, employees or any other assigns or representatives from intermeddling in any way with the estate of the deceased pending the hearing and determination of this succession proceedings.d.That the grant issued in favor of the petitioners/respondents herein on 23rd February 2021 be revoked.e.That all original title deeds belonging to the deceased as listed in the affidavit in support of the petition for letters of administration intestate dated 28th August 2020 be deposited at the court pending the final determination of these succession proceedings.f.That the petitioners/respondents file a complete inventory of the estate of the deceased within a period to be determined by the honourable court pending the hearing and determination of this application which inventory should be in strict compliance with Section 83(h) of the Law of Succession Act including but not limited to:-x.Detailed financial statements of Jowanga Holdings Ltd for the period in question together with supporting documentation;xi.All bank statements for all accounts of Jowanga Holding Ltd for the period in question;xii.All bank statements for all accounts of the deceased for the period in question;xiii.Accounts of all transactions undertaken, payments made, and funds received and expenditures incurred on behalf of the estate;xiv.All transactional documents for the disposal of any property belonging to the estate including agreements for sale and transfer documents;xv.Schedules of all rental incomes from the entire estate for the period in question noting to include any tenancies/occupation that did not attract rental income;xvi.Details of all properties of the deceased which were not subject to the administration process including his motor vehicle noting to attach copies of the log book;xvii.Copies of all title documents for the properties of the estate noting to avail the originals for verification by this court at an appointed time;xviii.Any other document required in order to comply with section 83(h) of the Law of Succession Act.g.That parties agree on a qualified accountant to undertake the audit of the books of accounts relating to the estate of the late John Samwel Gachuna Mbugua.h.That the cost of the application be borne by the administrators of the estate of the late John Samwel Gachuma Mbugua.

10. The application is based on the grounds set out therein and the supporting affidavit sworn by the 1st objector’s advocate Ethel Ngotho. He deposed that the administrators are intentionally stalling the succession proceedings to have certain properties forming the estate be shared amongst themselves to the detriment of the 1st objector. He deposed that he had recently discovered that parcel of land known as Ngong/Ngong/15749 had been illegally and fraudulently transferred to the administrators and the land had been subsequently subdivided. He deposed that the administrators have also tampered with the company records of Jowanga Holdings Ltd. According to Mr. Ngotho, the administrators have alienated the 1st objector from the affairs of the estate. Therefore, it is in the interest of justice that the orders sought be granted.

11. Parties were directed to canvass the applications by way of written submissions.

Determination 12. I have considered the applications, the affidavits, submissions and the entire record of the court. The main issue for determination is whether the grant issued to the administrators on 23rd February 2021 should be revoked based on material non-disclosure and concealment of fact. Section 76 of the Law of Succession Act conditions that could cause a grant to be revoked:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion- (a)that the proceedings to obtain the grant were defective in substance;

(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e)that the grant has become useless and inoperative through subsequent circumstances.”

13. In this instant case, the objectors’ main ground for seeking orders for revocation is that they are related to the deceased as a daughter to the deceased and mother of a son to the deceased. They have not proved their allegations in any way. The 1st objector in the second application prayed for orders to compel the 2nd and 3rd administrators to provide samples for a paternity test.

14. The administrator in their submission stated that there is no direct link created by the objectors to warrant a DNA test. Further to this, they argued that the 1st objector did not prove her paternity during the lifetime of the deceased. Therefore, her claim is an afterthought, mischievous and untenable in the circumstances.

15. The 1st objector deposed that she is a child of the deceased. Hence, a dependant. She deposed that a child of the deceased whether or not maintained by the deceased immediately before his death is a dependant.

16. Is this an appropriate case for the court to make an order for a sibling DNA test? From local decisions, it appears that courts have somewhat developed consensus on matters of children and the quest to establish paternity often citing the best interest of the child. However, as relates to whether DNA tests on matters involving adults some of whom are non-consenting, the issue remains moot, there is yet no consensus.

17. One school of thought is that for an order for a DNA test to be made, a basis must be laid; a nexus or link 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 to find, to establish the truth, and to reach a just conclusion even where no nexus or link has been established if the need is imminent.

18. In the case of S.W.W. vs G.M.K. (2012) eKLR the Petitioner sought as one of her prayers, for the Petitioner to be subjected to a DNA test to ascertain whether he was her biological father. In declining the prayer the court was of the view that;“Ordering the Respondent to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which rights are protected under the Bill of Rights. The Petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.”

19. Similarly, in the case of R.M.K VS A.K.G & Attorney General Petition No. 18 of 2013 the court held as follows:-“The Petitioner stated that the court should order a DNA test nevertheless as the facts in the deposition have not been challenged. As I have observed, the burden remains on the petitioner to establish by pleadings and evidence sufficient nexus between him and the respondent to persuade the court to grant the orders. In this case there is no evidence to support such a course.”

20. On the other hand, in the case of Wilfred Karenge Gathiomi vs Joyce Wambui Mutura & Another (2016) eKLR, the court stated as follows:-“Therefore, since under our law Sections 107 108 & 109 of the Evidence Act Cap 80 mandates that he who alleges must prove; the Applicant is the one who raised the issue of paternity against the 1stRespondent. He did not prove. The 1st Respondent claimed in spite of the date contained in her ID card she was born in 1950. She did not prove the same. Therefore, the only option is to result to scientific method for conclusive results. Both parties should undergo a sibling DNA testing to confirm if they are of the same father or not.The court finds that the DNA testing will not cause substantial loss to the applicant, except inconvenience that is less important to finding a lasting solution to the issue raised in the first place………………In light of above-cited authorities that DNA is intrusive and interferes with the right to privacy, this court finds basis for the DNA testing. Paternity is central to the dispute at hand, whether the 1strespondent is one of the beneficiaries of the estate of the deceased’s estate. It is the only way to resolve the paternity issue, the applicant raised and is now reluctant to pursue the matter to its logical conclusion. The DNA testing will not prejudice the Applicant’s case pending appeal, as he has not advanced any proposal on how to resolve issue it was his word against his.”

21. Looking beyond our Jurisdiction, in a south African case Bother vs Dreyer (now Moller) High Court of South Africa (Trans Vaal Province) Case No.4421/08(unreported) Judge J.R. Murphy stated;“In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of the truth should prevail over the idea that the rights to privacy and bodily integrity should be respected. - see Kemp. Proof of Consent or Compulsion (1986) 49 THRHR 271 at 279-81. ”

22. With the evidence on record, I am not satisfied that any of the Objectors proved to the required threshold a nexus or link with the deceased. Their allegations are untested. However, the centre of this dispute is the issue of paternity and I am satisfied on my part that justice will only prevail in the circumstances of this case if the court takes the approach of discovering the truth over the idea that the right to privacy and bodily integrity ought to be respected. This therefore demands that the court employs, the best available and most accurate method to arrive at a fair decision.

23. The 2nd and 3rd administrators may suffer some inconvenience and intrusion to their privacy. This has to be weighed against the need to resolve the outstanding issue. Secondly, quite obviously the issue of inheritance is at stake. If the results favour the objectors, they stand to benefit, if not the deceased will stand vindicated and the estate’s status quo maintained. Therefore, I find that the most efficacious and justifiable way to resolve the issue is to order that the 1st objector, the son to the 2nd objector and the 2nd and 3rd administrators submit to a sibling DNA test to determine paternity at the Government Chemist at a time to be agreed upon but not later than 14 days of the date hereof. The objectors will meet the cost of the DNA test. The upshot is that prayer (c) and (d) of the second application dated 25th November 2021 is allowed.

24. Furthermore, the Applications dated 17th September 2021, 25th November 2021, and 30th June 2022 are hereby stood over generally to be determined after the DNA results have been duly filed in court.It is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 14THDAY OF NOVEMBER 2023……………………………………..E.K. OGOLAJUDGEIn the presence of:Mr. Ngothofor the 1st ObjectorsMr. Nduati for the AdministratorsGisiele Muthoni Court AssistantOGOLA J. Page 5 of 5