[2018] KEHC 5926 (KLR)
The court held that the application for dependency could not be determined on the basis of the documents and written submissions alone. The applicant, claiming to be a child of the deceased born out of wedlock, must establish paternity through oral evidence and, if necessary, DNA testing. The court emphasized that...
Source-derived case information.
- Citation
- [2018] KEHC 5926 (KLR)
- Parties
- Applicant: [Name Redacted]; Respondent: [Name Redacted]
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1577 of 2006
- Procedural Posture
- Succession Cause / Ruling on Directions for Hearing of Application for Dependency
- Outcome
- No final determination; matter referred for re-allocation or further directions.
- Judges
- DN Musyoka
- Legal Topics
- Succession, Dependency Claims, Paternity Proof, Children Born Out of Wedlock
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
[Name Redacted]
Applicant
[Name Redacted]
Respondent
Procedural Posture
Succession Cause / Ruling on Directions for Hearing of Application for Dependency
Legal Issues
- 1 Whether the applicant has established that she is a child of the deceased for purposes of dependency under the Law of Succession Act.
- 2 Whether the application for dependency can be determined on the basis of documents and written submissions alone.
- 3 What evidentiary threshold is required to prove paternity in succession proceedings.
Ratio Decidendi
The court held that the application for dependency could not be determined on the basis of the documents and written submissions alone. The applicant, claiming to be a child of the deceased born out of wedlock, must establish paternity through oral evidence and, if necessary, DNA testing. The court emphasized that paternity requires more than reliance on documents and that the applicant must demonstrate a close relationship between her mother and the deceased or seek scientific proof. Since the applicant has not been cross-examined and the evidentiary threshold has not been met, the matter cannot be determined at this stage. The court, having been transferred, refrained from giving...
Court Disposition
No final determination; matter referred for re-allocation or further directions.
Orders
- The matter shall be placed before the Presiding Judge of the Family Division for re-allocation or further directions.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1577 OF 2006
IN THE MATTER OF THE ESTATE OF MARTIN LUTHER AWUOR (DECEASED)
RULING
1. On 2nd May 2018 it was pointed out to me by the parties that they were awaiting a ruling on the application dated 5th October 2012. I gave them a date for ruling on that application. In the course of preparing a draft ruling on the application. I perused the record before me. I noted that when the matter was initially placed before me on 28th October 2013, I had directed that the deponent of the affidavit sworn in support of the application be availed for cross-examination on the contents of her affidavit. There was a further direction that the maker of the birth certificate that she was to rely on be availed too.
2. When the matter came up next on 27th May 2014, it transpired that a preliminary objection had been raised to the said application. That thwarted the hearing as I had to rule on the said objection. I delivered the ruling on 2nd October 2015, dismissing the objection. Before a date could be taken for hearing of the said application, citations were issued by another party, and an objection was raised on the said citations. I was to rule on the said objection but I never got to, as a copy of the citation filed in court was not in the court file, and when I called upon the parties to avail one they did not cooperate. Eventually, I dismissed the objection by my ruling of 19th October 2017.
3. As it is, I had given clear directions on how the application dated 5th October 2012 was to be disposed of. The oral hearing did not happen, and no justification has been given to me for departure from the said directions. The application is for dependency. It is purported to be brought under sections 47 and 70 of the Law of Succession Act, Cap 160, Laws of Kenya. Dependency is provided for in Part III of the Act, sections 26 to 30 thereof. The said application should have been premised on those provisions.
4. The application is by a person who claims to be a child of the deceased born outside of wedlock. She seeks to be treated as a dependant of the deceased. Under Part III she ought to prove that she is indeed a child of the deceased. She need not, however, prove dependency once it is established that she is a child of the deceased. To prove paternity requires much more than mere reliance on documents. To do justice to the applicant, it would be imprudent to dispose of the application by merely considering the documents filed in court or the written submissions of the parties. The applicant must establish paternity through demonstrating that her mother and the deceased had a close relationship which provided opportunity for sexual contact that would have led to her conception, or, alternatively, apply for a deoxyribonucleic acid (DNA) test to be carried out. The test can be done with samples from the deceased’s remains, and that may require exhumation, or from samples from the deceased’s biological children.
5. Clearly, I cannot decide the matter on the basis of the material before me. The application has been challenged by the other parties. They do not concede to it. They have asked to cross-examine the applicant. The applicant has to establish her case. To do so, she must take the witness stand for cross-examination, and a DNA test may have to be conducted before it can be said that the time is ripe for determination of the said application.
6. As I have been transferred from the Family Division, I will not be available to hear the matter. I shall in the circumstances refrain from giving comprehensive directions on the conduct of the actual hearing. I shall leave that to my predecessor. The matter shall hereafter be placed before the Presiding Judge of the Division for re-allocation or further directions.
DATED, SIGNED and DELIVERED at NAIROBI this 14TH DAY OF JUNE, 2018.
W. MUSYOKA
JUDGE