[2019] KEHC 6381 (KLR)
The court found that the applicant had already failed to prove that she was the wife of the deceased and that her children were dependants of the deceased in a previous ruling. Consequently, there was no merit in seeking exhumation or DNA testing to establish paternity. Furthermore, the court held that it could not...
Source-derived case information.
- Citation
- [2019] KEHC 6381 (KLR)
- Parties
- Applicant: FSD; Respondent: KP
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 943 of 2001
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Exhumation and DNA Testing
- Outcome
- application dismissed with costs
- Judges
- REA Ougo
- Legal Topics
- Paternity Disputes, Dna Testing, Dependant Status, Exhumation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FSD
Applicant
KP
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Exhumation and DNA Testing
Legal Issues
- 1 Whether the court should order exhumation of the deceased's body for DNA testing to determine paternity of the applicant's children.
- 2 Whether the respondent's children and brother-in-law can be compelled to submit to DNA testing.
- 3 Whether the applicant's children are dependants of the deceased.
Ratio Decidendi
The court found that the applicant had already failed to prove that she was the wife of the deceased and that her children were dependants of the deceased in a previous ruling. Consequently, there was no merit in seeking exhumation or DNA testing to establish paternity. Furthermore, the court held that it could not compel the respondent's children and brother-in-law to submit to DNA testing as they were not parties to the application, and granting such orders would be prejudicial to their rights. The application was therefore dismissed in its entirety with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 29th September 2018 is dismissed with costs.
- No orders for exhumation or DNA testing are granted.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT KENYA AT NAIROBI
SUCCESSION CAUSE NO. 943 OF 2001
IN THE MATTER OF THE ESTATE OF MAP (DECEASED)
FSD.................................................APPLICANT
VERSUS
KP...............................................RESPONDENT
RULING
1. The Applicant in her application dated the 29thSeptember 2018 seeks the following orders;
i. THAT the late MAP’s grave situated in Kariakor Cemetery be opened to exhume his body with a view to take samples there from for the purposes of Deoxyribonucleic Acid Test.
ii. THAT in the alternative the Respondent’s children and brother in law BWMP be ordered to submit to a Deoxyribonucleic Acid Test (DNA) with the Applicant’s children namely SK and YK.
iii. THAT the Officer of Kenya Medical Research Institute to undertake the disinterment and do obtain the necessary samples of DNA testing.
iv. THAT the costs of the Deoxyribonucleic Acid Test be in the cause.
The application is based on the following grounds and supported by the annexed affidavit of FSD;
(a) That the matter has been scheduled for hearing on then 22nd day of November 2017 upon which the Applicant is to close her case.
(b) That it is crucial that a Deoxyribonucleic Acid Test is carried out to determine the paternity test of the Applicant’s children.
(c) That the main issue in dispute in the case herein is the paternity of the Applicant’s children.
(d) That the conduct of the Deoxyribonucleic Acid Test is the most scientific way to establish paternity of the Applicant’s children.
(e) That it is in the interests of justice that the orders sought for are granted.
(f) That the Respondents will not suffer any harm as a result of the Deoxyribonucleic Acid Test.
2. The application was opposed by the Respondent.
DETERMINATION
3. Having considered the affidavits and cases relied on I find as follows; In my Ruling dated the 16th May 2019 I have made a finding that the applicant has failed to prove that she was the wife of the deceased and that her children were not dependants of the deceased. Having made the said finding I find no merit in this application. I also find that seeking an exhumation of the deceased’s body 15 years after his burial without any reasonable cause has no merit.
4. On the prayer seeking to have the Respondent’s children and Brother in law BWW to submit to DNA test I find that the said persons were not made parties to the application and granting the orders would be prejudicial to the said parties.
I therefore find no merit in the application and dismiss it with costs.
Dated signed and delivered at Nairobi this 16thday of May 2019.
R.E. OUGO
JUDGE
In the presence of;
Miss Khafafa For the Applicant
Miss Mburu h/b for Mrs Mbanya For the Respondent
Ms Mercy Court clerk