[2019] KEHC 2926 (KLR)
The court determined that the most accurate and fair approach to the DNA testing, as recommended by the Government Chemist, is to include all biological mothers and their children in the test. The court found no sufficient reason to expand the scope of the test to include third parties or additional relatives, as...
Source-derived case information.
- Citation
- [2019] KEHC 2926 (KLR)
- Parties
- Applicant: Rose Kihenzani Eboya; Respondent: Dorah Awinja Miya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 568 of 2008
- Procedural Posture
- Succession Cause / Ruling on Implementation of DNA Testing Order
- Outcome
- Application for wider DNA testing scope declined; DNA test to proceed as per Government Chemist's recommendation.
- Judges
- A Ali-Aroni
- Legal Topics
- Succession Disputes, Dna Testing, Paternity Determination, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Kihenzani Eboya
Applicant
Dorah Awinja Miya
Respondent
Procedural Posture
Succession Cause / Ruling on Implementation of DNA Testing Order
Legal Issues
- 1 Whether the DNA test should include only the biological mothers and their children or be expanded to include other relatives for accurate results.
- 2 Whether third parties should be invited to participate in the DNA test.
Ratio Decidendi
The court determined that the most accurate and fair approach to the DNA testing, as recommended by the Government Chemist, is to include all biological mothers and their children in the test. The court found no sufficient reason to expand the scope of the test to include third parties or additional relatives, as suggested by the applicant. The court emphasized the importance of relying on expert opinion in technical matters and directed that the parties named submit to the DNA test within 15 days, thereby ensuring the integrity of the succession proceedings and the resolution of the paternity issue central to the administration of the estate.
Court Disposition
Application for wider DNA testing scope declined; DNA test to proceed as per Government Chemist's recommendation.
Orders
- Rose Kihenzani Eboya, Esther Ayona Miya, Dorah Awinja Miya, Jacob Nganyi Miya, and Daniel Okore Libaledo to submit to DNA test with Government Chemist within 15 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
(FAMILY DIVISION)
SUCCESSION CAUSE NO 568 OF 2008
IN THE MATTER OF THE ESTATE OF JOHNSTONE MOSES MIYA NGANYI (DECEASED)
ROSE KIHENZANI EBOYA……………………………….APPLICANT
VERSUS
DORAH AWINJA MIYA…………………………………RESPONDENT
RULING
1. By a consent of the parties, the applicant’s daughter E.A.M and the respondent’s son J.N.M. were to undergo a sibling DNA test at an institution to be agreed upon.
2. The said consent was adopted as order of this court on the 25th of February 2019.
3. The order was issued on the 7th of March 2019 and served upon the Government Chemist, who in turn upon holding discussions with the parties gave an opinion on two alternatives and indicated preference of the 2nd options. The options were; to exhume the remains of the deceased which option would have a significant level of degeneration due to lapse of time or option of sampling of DNA from biological mothers and all their biological children to allow for wider gene pool for better comparison.
The Chemist preferred the second option.
4. The Respondent’s counsel had no difficulty with the opinion expressed, however Mr. Ondieki for the Applicant wanted the net cast wider for the reason that the children of the Respondent were all male. He was of the view that female genes from the deceased side be included to allow “plausible and verifiable gene extraction.
5. Having considered the sentiments by counsel for both sides I am inclined to go along with the expert opinion of the Government Chemist to have the DNA test being carried with all biological mothers and their children to enhance accuracy of the results. I see no cause to invite third parties for the test.
6. Consequently, I direct that Rose Kihenzani Eboya and Esther Ayona Miya together with Dorah Awinja Miya, Jacob Nganyi Miya and Daniel Okore Libaledo submit to the DNA test with Government Chemist at a date to be agreed upon and not later than 15 days from the date hereof.
Dated and Delivered in Nairobi on this31ST day of OCTOBER, 2019.
ALI-ARONI
JUDGE