[2023] KEHC 25081 (KLR)

In re Estate of Martin Magal alias Martin Peter Magal (Deceased) (Succession Cause 6 of 2019) [2023] KEHC 25081 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25081 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Succession Cause 6 of 2019

AC Mrima, J

November 8, 2023

IN THE MATTER OF THE ESTATE OF MARTIN MAGAL alias MARTIN PETER MAGAL (DECEASED)

Between

Roseline Cheptoo Magal

1st Applicant

Catherine Chepkemei

2nd Applicant

and

Carolyne Cherotich Magal

1st Respondent

Irene Cherop Losapu

2nd Respondent

Ruling

Introduction: 1. One of the main contentions in this matter is whether the deceased herein, Martin Magal alias Martin Peter Magal, was the biological father to Irene Cherop Losapu and Samuel Ruto. Another hotly contested issue is whether Carolyne Cherotich Magal, the 1st Respondent, was a wife to the deceased.

2. There is, however, no contention that Carolyne Cherotich Magal is the mother to Irene Cherop Losapu and Samuel Ruto.

3. In a bid to encourage amicable resolution of the dispute, this Court gave ample time to the parties to pursue reconciliation. However, chances of reaching an agreement seemed to dwindle as time passed by, hence, the decision to proceed on with the matter.

4. The application under consideration in this ruling is a Notice of Motion dated 24th May, 2023. It was taken out by Applicants herein.

The Application: 5. The application sought the following prayers: -a.That the Honourable court be pleased to order that the late Martin Magal Alias Martin Peter Magal grave situate at Psigiro Sub-location be opened to exhume his remains with a view of taking samples therefrom for purposes of Deoxyribonucleic Acid (DNA) Test.b.That the officers of the Kenya Medical Research Institute do undertake disinterment and do obtain necessary samples for DNA test.c.That OCS Kapenguria Police Station do offer security during exhumation exercise herein.d.That the Honourable Court be pleased to order that Irene Cherop Losapu and Samwel Ruto Losapu do present themselves to Kenya Medical Research Institute within 7 days or earlier after exhumation and harvesting of DNA samples of the deceased for sample testing and comparison.e.That the DNA results /findings be filed in court within 30 days.f.That costs of the exercise shall be borne by the Respondents/Applicants.g.That the cost of this application be costs in the cause.

6. A Supporting Affidavit and a Supplementary Affidavit sworn by Roseline Cheptoo Magal on 24th May, 2023 and 19th July, respectively were filed in support of the application.

7. The application was opposed by Respondents through the Replying Affidavit sworn by Carolyne Cherotich Magal on 13th June, 2023.

8. On the directions of this Court, the application was heard by way of written submissions. Both parties duly complied.

Analysis: 9. Having carefully considered the application, the response, the submissions and the decisions therein, this Court finds that the only issue for determination is whether the application ought to be allowed.

10. The reliefs sought in the application have already been captured verbatim above.

11. Both parties seem to be on the extreme ends of the divide. The Applicants hold that the deceased was never married and had no children or at all. However, Carolyne Cherotich Magal affirmed that she was the wife of the deceased and that their union was blessed with the two issues in issue.

12. As said, the parties did not strike a compromise on the matter.

13. The Respondents viewed the application as an afterthought. They wondered why the Applicants had to wait for 17 years before they made the request. To them, this Court ought to disallow the application and let the deceased rest in peace.

14. Article 45 of theConstitution provides for the family. It defines the family as the natural and fundamental unit of our society and the necessary basis of social order. TheConstitution calls for the recognition and protection of the family by the State.

15. The Constitution further accords every adult the right to marry a person of the opposite sex, based on the free consent of the parties.

16. Therefore, this Court is under an unequivocal duty to ensure that the family of the deceased herein is properly ascertained, recognized and accordingly protected as the laws permit.

17. The application, hence, tends to partially ascertain and recognize the family of the deceased. This Court says so since there is the other issue as to whether the deceased was married, which issue is not within the ambit of the instant application.

18. The application would then turn out to be an attempt by the Applicants to ascertain and recognize the family of the deceased. That is in line with the recognition aspect under Article 45 of the Constitution. Once this Court recognizes the members of the family of the deceased, it will then deal with their protection.

19. Could there be any other way of ascertaining the paternity of Irene Cherop Losapu and Samuel Ruto without the necessity of exhuming the body of the deceased? The parties did not propose any such other way.

20. Likewise, this Court is at a loss as to the possibility of any other way. Whereas it is most appropriate and indeed a high-calling within the African society that the dead be left to rest in peace, suffice to say that there are instances which may demand the unpleasant disruption of that peace. That was the reason why this Court urged the parties to pursue amicable resolution of this dispute. The exercise, however, did not yield any positive results.

21. Given that conducting DNA tests may seem to be the only way to conclusively determine the paternity of Irene Cherop Losapu and Samuel Ruto, then this Court, although it finds the exhumation of the body of the deceased unpleasant, has no option than to allow the request.

Disposition: 22. Deriving from the foregoing discussion, the following orders of this Court hereby issue: -a. The grave of the deceased in this matter, Martin Magal alias Martin Peter Magal, situate at Psigirio Sub-Location shall be opened for purposes of taking samples from the remains of the deceased to enable the carrying out of Deoxyribonucleic Acid (DNA) Tests.b.The Deoxyribonucleic Acid (DNA) Tests shall be for purposes of ascertaining any biological-paternalrelationships between the deceased and Irene Cherop Losapu and Samuel Ruto.c.The disinterment of the remains of the deceased and the taking of the samples therefrom together with the taking of the samples from Irene Cherop Losapu and Samuel Ruto shall be undertaken by officers from the Kenya Medical Research Institute or any other such reputable entity as may be appointed by the consent of the parties.d.The said Irene Cherop Losapu and Samuel Ruto shall present themselves for taking of the samples as shall be directed by the said Kenya Medical Research Institute or any other entity undertaking the exercise, as the case may be.e.The OCS, Kapenguria Police Station shall offer security during the exhumation exercise.f.The resultant Report shall be filed in Court within 30 days of today.g.Once the Report is filed, the Hon. Deputy Registrar shall serve copies thereof upon the parties in this case.h.The Applicants herein, Roseline Cheptoo Magal and Catherine Chepkemei, shall bear the costs of the entire exercise.i.The costs of the instant application shall be in cause.j.This matter shall be fixed for further directions on a date to issue.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KAPENGURIA THIS 8TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGERuling No. 1 delivered virtually and in the presence of: -Mr. Lowaskou, Learned Counsel for the Applicants.Ms. Arunga for Miss. Munialo, Learned Counsel for the Respondents.Juma/Hellen – Court Assistants.