[2022] KEHC 9906 (KLR)

In re Estate of Kitur Chepsungulgei (Deceased) (Succession Cause 53 of 2020) [2022] KEHC 9906 (KLR) (4 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9906 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 53 of 2020

RN Nyakundi, J

July 4, 2022

Between

Kennedy Kiptoo

Applicant

and

Gidion Kibitok

1st Respondent

Benard Kipkorir

2nd Respondent

Stephen Kiplagat

3rd Respondent

Dennis Kiplagat

4th Respondent

Ruling

1. Before me for determination is the Objector/Applicant’s Notice of Motion dated July 12, 2021. The Applicant seeks the following orders;1)Spent.2)That in the interest of justice the Court issues a temporary injunction suspending the confirmation of grant of letters of administration and the process of proposing the mode of distribution of the estate until this application is heard and determined.3)That given that the outcome of this application may adversely affect the grant of letters of administration of the estate a temporary injunction suspending the confirmation of the grant of letters of administration and staying the process of proposing the mode of distribution is eminent.4)That in the interest of justice if need be the Court orders for DNA test of the applicant and one voluntary member of the family be conducted in the government laboratory to ascertain the true facts of the paternity.5)That the Court issues an order recognizing the applicant/objector as a beneficiary of the estate in the circumstances the DNA results turns out positive.6)That the Court further issues an order recognizing the Objector/applicant as a dependant.7)That the substratum of this application will be rendered nugatory to the prejudice of the applicant if the orders sought will not be granted.8)Any other order that the Court may deem just and in the interest of justice.9)That cost of this application be provided for by the 1st and 2nd respondents.

2. The application is premised on the grounds on the face of it and it is further supported by the Applicant’s affidavit sworn on July 12, 2021

Applicant’s Case 3. The Applicant averred that the 1st and 2nd administrators herein have excluded him from the list of beneficiaries of the estate of Kitur Chepsungulgei. The Applicant that averred that currently, the estate is at the phase of distribution. The Applicant that he is the biological son of Victor Kirwa Kitur (deceased) who the son of Kitur Chepsungulgei. That the said Victor Kirwa Kitur was the youngest son of the deceased herein was born in the 2nd House.

4. The Applicant further averred that he had initially initiated succession proceedings with respect to the deceased’s estate vide Citation No. 41 of 2020 but the 1st and 2nd respondents herein hijacked the said process by filing a parallel petition being this instant cause. The Applicant averred that the 1st and 2nd respondents intentionally omitted his name at the time of filing this instant petition with the sole aim of disinheriting him. The Applicant deposed that the respondents have known him since childhood and that he has maintained a close connection the deceased’s family to date.

5. The Applicant maintains that he had raised concerns regarding the administration of the estate of the deceased in Misc Application No. 9 of 2020 but was advised by the Honourable Court to raise the said concerns in the instant petition so as to avoid multiplicity of causes prompting him to file the application herein.

6. The Applicant contends that the 1st and 2nd Respondents have termed as a stranger in the deceased’s without any basis. The Applicant argued that he in fact ranks in priority with the 2nd Respondent herein being grandsons of the deceased.

7. Due to the on-going dispute regarding the procedure of selecting the administrators with respect to the deceased’s estate, the applicant urged issue to a restraining order so as to prevent any dealings in the said estate and to preserve the subject matter.

8. The Applicant averred that he has since been regarded homeless by the respondents herein who threw him out of the deceased’s homestead. The Applicant maintains that respondents only intent is to deny him his father’s rightful share in the said estate. The Applicant maintain that his deceased father is a bona fide beneficiary of the estate which is subject of this instant petition.

9. The Applicant contends that he will suffer great prejudice and loss occasioned by the 1st and 2nd Respondents if the grant of letters of administration is confirmed given their past actions regarding his stake in the said estate.

10. The contends that if the list of administrators chosen on July 14, 2020 is not quashed based on the foregoing facts then he stands to soley lose and will be totally disadvantaged by the decisions made by the said administrators.

Respondents’ Case 11. The 1st Respondent has opposed this application via a Replying Affidavit dated December 23, 2021 July, and Further Replying Affidavit dated March 28, 2022 in which he contended that the Applicant herein is a complete stranger to the estate and hence they are under no obligation to include him as a beneficiary. The Respondents contend that this instant application has been late in the day since it was the Applicant who caused the institution of these when he filed Citation No. 41 of 2020. The Respondents averred that the abovementioned citation became spent after they instituted these proceeding and that nothing legally bars them from moving court since the said citation was meant to trigger them to institute these instant proceedings.

12. The Respondents strongly opposed the prayer by the Applicant that a DNA test be conducted on the Applicant and any volunteering member of the deceased’s family. The respondents maintain if the Applicant is ready to prove dependency, he ought to undergo DNA testing by seeking exhumation of the body of his alleged late father for purposes of taking samples for the said DNA test. The respondent contend the onus of proving dependency lies with the Applicant and not with the respondents. It was however the respondents’ case that in the event the Court finds this case suitable for DNA testing, the Respondents’ sisters should be the basis of the sampling of the DNA test for reason that in the absence of any previous DNA results confirming that the late Victor Kirwa Kitur as having been the biological child of the deceased herein, there is no known sample against which the DNA being sought will be sampled.

13. The 1st Respondent averred that his late brother, one Victor Kirwa Kitur died intestate leaving no dependant to survive him as he was never married and or had any children. The 1st Respondent averred that the circumstances under which the Applicant herein allegedly obtained his certificate of birth raise suspicion. The respondents contend that the certificate of birth which the Applicant seek to rely on as proof of dependency was obtained almost twenty years after the death of their late brother. The Respondents contend that the Applicant has not established any relationship between their late brother and his mother. They Respondents further contend that Applicant that he has rendered explanation as to history of the relationship between his mother and the said Victor Kirwa Kitur.

14. The Respondents maintain that the applicant herein has only brought this instant application to derail justice at the expense of the rightful beneficiaries of the deceased’s estate. the respondent further contend that being the administrators and the legal beneficiaries of the estate herein, nothing bars them from moving court to have the estate distributed as provided by the law. That there being four administrators already appointed by Court, the prayer by the Applicant to be enjoined as an administrator cannot stand in light of Section 56 (1)(b) of Cap 160 of the Laws of Kenya.

15. The respondents averred that to confirm their fairness, they had agreed each administrator represent the interests of each house entitled to a share of the said estate. The respondents denied allegations by the Applicant that they intend to disinherit him giving that is a stranger in the said estate. The respondents further contend that the allegation by the Applicant that he has been rendered destitute are unfounded as he is a complete stranger to the said estate.

16. The respondent averred that the Applicant is a habitual litigious individual as evidence by previous applications filed by him. That is Citation No. 41 of 2020, HCCC Misc Appl No. 9 of 2020 and this instant application.

17. The respondents averred that the deceased herein died in 1980 and that the delay in instituting succession proceedings has been caused by inherent family wrangles.

18. The respondent contend that no reason has been advanced by the Applicant to warrant the stay of distribution of the said estate.

19. The respondents denied the alluded allegations by the Applicant that he has been under their guardianship.

20. The respondents urged Court to dismiss the Applicant’s application.

Analysis and Determination The anchor of this matter is as expounded in the Hellen Cherono Kimurgor –v- Esther Jelagat Kosgei (2008) eKLR Justice Onyancha held as follows:-“From time immemorial it has been the natural desire of most men that after their death, their bodies should not only be decently and reverently interred, but should also remain in the grave undisturbed. This view should and is indeed respected by societal institutions including the courts of law. Occasions, however arise when unforeseeable circumstances make it desirable or imperative that a body should be disinterred for good reasons. While the court would usually be slow to make orders for disinterment, it nevertheless will not hesitate to do so in suitable cases. The court will, on the other hand, avoid placing any fetters on its discretionary power to do so. That is to say, the court will without fear make orders for disinterment whenever the circumstances of the case make it desirable or imperative to do so. This, in my view, is the tenor of the case of Re Matheson (deceased) [1958]1 AII E.R, 202. (Emphasis added).” 21. I have considered the pleadings and the submissions filed by the learned Counsels. The Applicant seeks that a DNA test be carried out on him and one other volunteer member of the family of the deceased in order to establish his paternity.

22. The Applicant alleges that he is a grandson of deceased’s having been sired by the deceased’s son Victor Kirwa Kitur who is also deceased. The Applicant has produced a copy of certificate of birth in Court as evidence that Victor Kirwa Kitur was he father.

23. The Respondents on the other hand have denied the said allegations and term the Applicant herein as a stranger to the estate of the deceased. The Respondents are also opposed to the prayer by the Applicant seeking that a DNA test be conducted in order to establish his paternity and establish his claim in the said estate. The Respondents have also questioned the certificate of birth produced in Court by the Applicant and marked as exhibit KK2 citing that the same was issued almost twenty years after the demise of the deceased. The Respondents maintain that if a DNA test is to be ordered then Applicant should exhume his alleged deceased father in order to pursue the same.

24. From the record it is clear that the Applicant in his quest to establish his stake in the deceased’s estate has previously filed a number suits. All in an effort establish that he is the son of the late Victor Kirwa Kitur who is entitled by virtue of Section 29 of the Law of Succession Act to a share of the deceased’s estate.

25. Rule 73 of the Probate and Administration Rules bestows a succession court with inherent powers to make such orders as may be necessary for the ends of justice.

26. At the center of this dispute is the issue of the paternity of the Applicant which I am convinced that justice will only prevail if the said DNA test was to be undertaken so as to conclusively determine whether the Applicant is entitled to share in the estate of the deceased.

27. In the Matterof theEstateofPeter Muraya Chege Alias Muraya Chege [2019] eKLR Hon Justice A.K. Ndungu held that:-11. “ In this time and age of considerable scientific discovery, development and achievement, where a dispute arises as to the paternity of an individual, there is no better way to settle that issue with finality than through a dependable DNA test.

20. Where a proper basis is laid such a test should be ordered.”

28. The only bone of contention is who amongst the deceased’s children should volunteer their DNA sample for the said test. I find that it is not necessary to exhume the body of Victor Kirwa Kitur for purposes of conducting a DNA test. It is possible for one or two of the siblings of Victor Kirwa Kitur to give a sample of their DNA so as to establish whether the Applicant herein was sired by the late Victor Kirwa Kitur.

29. I am alive to the fact that Article 31 of the Constitution of Kenya 2010 grants every person the right to privacy whereas Article 28 grants every person inherent right to dignity. I associate myself with the sentiments of Aroni J, in M.W & 3 Others –vs- D.N [2018] eKLR where she stated;“The beneficiaries named in the application may suffer some inconvenience and intrusion to their privacy. This has to be weighed against the need to resolve the outstanding issue. Secondly quite obvious the issue of inheritance is at stake. If the results favour the applicant she stands to benefit, if not the deceased will stand vindicated and the estate’s status quo maintained. I therefore find that the most efficacious and justifiable way to resolve the issue is to order that the applicant D.N and the beneficiaries named in the application P.S.K, V.N.K and A.S.K do submit to 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.”

30. The DNA test will establish whether the Applicant shares common paternity with the known and the undisputed children of the deceased. The discovery of the truth in this matter as regards the paternity of the Applicant is central in articulating his claim to the estate.

31. In view of the foregoing I hereby order as follows;i.That a DNA examination shall be done on the 1st, 2nd and 3rd Respondents (namely Gidion Kibitok, Bernard Kipkorir and Stephen Kiplagat) and the Objector/Applicant (namely Kennedy Kiptoo) in order to determine the issue of the paternity of the Applicant herein.ii.That the DNA to be done by Kenya Medical Research Institute( KEMRI).iii.That matching samples shall be taken from the bodies of the 1st 2nd and 3rd Respondents and Objector named in (i) above within (45) days from the date of this ruling.iv.That the costs of conducting the DNA test be paid by the Objector herein.v.That the Kenya Medical Research Institute to submit their report within (30) days from the date of submission of samples.vi.That this case will be mentioned on 19/9/2022 for further directions.vii.Costs of the application to abide the outcome of the DNA result.As a matter of justice I subscribe to the notion that indeed the Dead have rights too.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 4TH DAY OF JULY, 2022. R. NYAKUNDIJUDGEIn the presence of:-M/S Isiaho for the 1st & 2nd administratorsKiboi for Mwangi for the applicant