[2018] KEHC 9511 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 1577 OF 2006

IN THE MATTER OF THE ESTATE OF MARTIN LUTHER OWUOR(DECEASED)

AND

IN THE MATTER OF AN APPLICATION BY PRIMROSE MUKASA BIFILAWALA

R U L I N G

1. The Applicant PRIMROSE MUKASA BIFILAWALA moved the court in an application dated 5th October, 2012, seeking to be declared a dependant of the deceased herein, and in a ruling dated 14th June 2018 Musyoka J before whom the application was argued stated that he was unable to decide the matter on the basis of the material then before court, as the application had been challenged, the respondents had asked to cross-examine the applicant , which he thought she should withstand and he further was of the view that there might be need for a DNA test.

2. Following the above ruling, on the 17th of July, 2018 the applicant filed the current application where she seeks that OWITI ALLAN OWUOR or any other beneficiary of the estate do present themselves for a DNA test alongside the Applicant at Lancet Laboratory, in the alternative, the body of the deceased be exhumed for purposes of collecting DNA samples in order to establish the applicanrt’s paternity and lastly, that the Estate do meet the cost of the DNA test.

3. The application first came for hearing on the 31st of July, 2018 when counsel for beneficiaries other than OWITI ALLAN OWUOR, acting in person indicated that save for the prayer for exhumation they did not object to the application. Mr. Owiti sought for 7 days to respond to the application and for his benefit the matter was deferred to 8th of August 2018. He was to file and serve his response within 7 days.

4. On the 8th of August, 2018 when the said application was listed for hearing Mr. Owiti had neither filed a response nor did he appear in court, though he was present when the date was taken and order requiring his response made.

5. In his submission in support of the application counsel for the Applicant urged that there was no opposition to his client being declared a beneficiary from other beneficiaries save for Mr. Owiti and the said opposition was malicious and has no factual or legal basis. He further urged the court to allow the remains of the deceased be exhumed since neither Mr. Owiti nor the other beneficiaries had come forward to undergo the DNA test.

6. Miss. Opar for the 1st Objector had no objection to the application. She went ahead to state that there is a rebuttal presumption that Applicant is a child of the deceased as there is close resemblance and she ought to be a beneficiary. This was said from the bar.

Miss Achar for 2nd Objector objected only to the exhumation of the remains of the deceased as he had been buried 18 years ago.

Miss Wanyonyi did not object to the DNA test with beneficiaries and urged that to exhume the remains of the deceased should come as a last resort.

7. The Applicant’s application is certainly unopposed in terms of the first prayer to have sibling DNA with the children of the deceased.

In order to arrive at an informed decision, the court has had to consider the very first application and the supporting affidavits thereto. In a further affidavit in support of the said application, the Applicant gave a narrative of how she interacted with her father’s widows, her alleged siblings and more particularly Owiti Allan Owuor. and Donald Wamari who both objected to her application, before and after the death of deceased, her visit to hospital while the deceased was admitted, her attendance at the burial, her recognition during the burial including the inclusion of her name in the list of beneficiaries as drawn by the deceased area chief. She further deposed that the deceased took care of her during his life time.

8. In R. M. K. vs A. K. G and Attorney General Petition No. 18 of 2013 the court stated:

“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 in order to persuade the court to grant the orders. In this case there is no evidence to support such a course.”

In Wilfred Karenge Gathiomi v Joyce Wambui & Another (2016) eKLR the court said.

“Therefore, since our law Sections 107, 108 and 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 1st respondent he did not prove…….

Therefore, the only option is to remit it to scientific method for conclusive results……………………..”

In M. W. & 3 Others v D. N. Succession cause No. 123 of 2017 (un reported). This court was of the following opinion:

“At the centre of this dispute is the issue of paternity and I am convinced 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 far decision.”

9. Having considered the application, affidavit in support, other pleadings on record, submissions by counsel for the parties and in the absence of any affidavit(s) in opposition, I find that the applicant has met the necessary threshold in that she has demonstrate prima facie that there is indeed a connection or a nexus between her and the deceased for the court to order for a sibling DNA test.

10. The court is also of the view that the DNA test will not cause substantial loss to those who will undergo the same, except probably minor inconveniences that would be less important compared to finding a lasting solution to the issue raised in the first place. Intrusion to privacy and dignity to any person has to be weighed against the pending issue as the court embarks in the interest of justice to find the truth using the most efficient and accurate scientific method.

11. With the above in mind I do concur with counsel for the beneficiaries that the dead should remain undisturbed and to exhume should be the last resort.

The one objecting to the inclusion of the applicant and who remains doubtful to date is Owiti Allan Owuor. In my view, he ought to be the one to be subjected to sibling DNA test in order for the court to make final orders in relation to the application and pave way for distribution and closure to this matter 18 years after the death of the deceased.

12. Consequently, the court hereby directs and orders that Mr. Owiti Allan Owuor do avail himself at Lancet laboratory in Nairobi, together with the applicant Primrose Mukasa Bafilawala for purposes of conducting a sibling DNA test on a date to be agreed upon but not later than ten (10) days of the date of this order.

Costs of the DNA test be met by the estate managers Tysons Ltd.

DATED, SIGNEDandDELIVEREDat NAIROBI this 4th DAY OF October 2018.

........................

ALI-ARONI

JUDGE