[2017] KEHC 7526 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 259 OF 2014

IN THE MATTER OF THE ESTATE OF THE LATE SIMEON KIPTUM CHOGE

AND

IN THE MATTER OF AN APPLICATION BY MARY NANYAMA WEKESA…............................................................APPLICANT

AND

EGLYNE CHEPCHIRCHIR CHOGE …............1ST RESPONDENT

MIRRIAM ARUM CHOGE ….........................2ND RESPONDENT

CHRISTIAN CHOGE ….................................3RD RESPONDENT

JOSEPH ANG'ANG'A …................................4TH RESPONDENT

AND

IN THE MATTER OF AN ORDER FOR DNA TO BE UNDERTAKEN TO ESTABLISH PATERNITY OF JOHN KIPKERICH CHOGE ALSO KNOWN AS JOHN KIPKEMBOI SIMIYU ALSO KNOWN AS JOHN KIPKERICH (DECEASED)

RULING

1. The Notice of Motion application dated 9/2/2017 by one Mary Nanyama Wekesa prays for the following reliefs;

1) That the applicant be enjoined to these proceedings

2) That the court be pleased to make an order that samples be taken and or extracted from the remains and or the body of Mr John Kipkekerich Choge also known as John Kipkemboi Simiyu also known as JohnKipkerich for purposes of DNA test to establish paternity.

3) That the samples extracted be preserved at anyGovernment hospital and or Laboratory and or a laboratory of choice pending determination of this appeal and in particular prayer (5) thereof.

4) That upon grant of prayer 2 above, the court be pleased to order and or direct that any family memberof the late Hon. Simeon Kiptum Arap Choge also knownas John Kipkemboi Simiyu also known as John Kipkerich (the deceased) or amongst the ones whoswore the affidavit, filed in court in this matter to availthemselves /himself for purpose of providing Samples for DNA test to be taken for comparison so as toestablish paternity of the deceased in relation to Hon.Simeon Kiptum Arap Choge.

5) That the court be pleased to make any other orderthat it may deem fit and just to grant in the interest ofthe deceased estate and the family of the Hon. Simeon Kiptum Arap Choge as a whole.

2. The same is supported by the applicant's sworn affidavit dated 9/2/2017 together with the supporting annextures and the grounds thereof.

3. The applicant deponed that she married the late Hon Choge in 1965 while in college and they were blessed with other children who included John Kipkerich who was born on 25/1/1966. That she was aware that the late Choge died on 14/12/2013 and that there have been paternity issues regarding some of his children who included her son hereinafter referred to as John. That the said John died on 4/2/2017 and his remains now lie at Dreamland Mortuary. That her desire is to have DNA test conducted so that it could be truly established that he was the deceased son. By taking and preserving John samples and later undertaking DNA test the question of whether he was entitled to the estate of Hon. Choge would be settled conclusively. She attached a birth certificate issued on 24/2/2011 to back up her claim as well as the deceased National identity card issued on 1/12/2011. She further attached other birth certificates of her children whom she claimed she sired with the late Choge.

4. In opposition to the application one Mirriam Choge Arum has sworn a replying affidavit dated 17/2/2017 on her behalf and the rest of other family members where she has raised several pertinent issues . She deponed that the applicant herein was married to one Jesse Wekesa and not the late Choge and that it was the said Wekesa whom the applicant got the late John from. In any case she states that she has come too late in the day and she only waited for her son to pass on yet she had all the time to bring her claim immediately after Choge's death. She further contents that the identity card of the late John presented was at variance with the certificate of birth and could as well be for two different persons. She urged this court to dismiss the application.

Analysis and Determination

5. I have perused the entire application as well as the replying affidavit and the applicants counsels submissions. The first pertinent legal issue to determine which was also raised by the respondent is whether the applicant has locus standi to bring the application in respect to the estate of the late John.

6. There is no doubt that the said John died on 4/2/2017 as evidenced by the burial permit attached. Essentially therefore the applicant who is her mother ought to obtain permission from the court through an application for letters of administration intestate assuming that he died without a valid will. In this case there is nothing exhibited to that effect.

Section 82 of Cap 160 Law of Succession Act states as follows:-

82 “Personal representatives shall, subject only to any limitation imposed by the grant, have the following power;

a) to enforce, by suit or otherwise causes of action which, by virtue of any written law, survive the deceased or arise out of his death for his estate”.

7. It is trite law that nobody shall intermeddle with the estate of a deceased person without first obtaining letters of administration. In the absence of such I do not think the applicant being a mother to the late John and wife to the late Choge has any locus standi. On that ground alone this application ought to fail.

8. However there are other prayers which merits determination. She alleges that the applicant was born in 1966, through her union with the deceased the late Choge. However apart from the certificate of birth and the identity card which are exhibited I do not see any other tangible evidence to connect the late John and the later Choge. Mere exhibition of certificate of birth , which apparently were obtained later at this juncture may not be useful.

9. Moroever as correctly stated by the respondents the certificate of birth shows the date of birth as 25/01/1966 whereas the identity card reads 24/01/1966. These are material contradictions which can only be challenged through oral evidence and in the premises dent the applicants application.

10. Further Section 29 of Cap 160 Succession Act provides the list of who are dependants namely;

a) the wife, or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.

b) such of the deceaseds parents, step parents, grand parents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers and half sisters, as were being maintained by the deceased immediately prior to his death, and”

11. The above in my view is so wide that it covers the late John and by extension the applicant if at all they have a legitimate claim in the estate of the late Choge. I do not think one needs to conduct a DNA test to qualify. If indeed for over 50 years the late John was well known and being supported by the late Choge and the applicant then subjecting the family members of the late Choge to a mandatory DNA exercise as prayed by the applicant will be unethical, and may cause mental anguish and generally embarrassing. All the applicant needs to establish once she is able to obtain locus standi on behalf of Johns estate is to prove that indeed he was the son of the late Choge. Luckily though she was his mother.

12. In DNM Vs JK 2016 eKLR my brother Onguto J stated as hereunder:-

a) “The law on the topic of compulsory blood or DNA testing in paternity disputes, which is also partly an issue in the petition here, is yet to be completely and satisfactory developed localy. There is no express legislative framework, which specifically regulates the position in Civil cases. The few Judicial pronouncements on the topic do not appear unanimous in approach or principle.

b) Whereas in relations to children, the courts have occasionally been quick to act in the child's best interest and ordered DNA testing, with regard to non-consenting adult the Jurisdiction hasbeen left hazy ------”

c) In conclusion I hold the view that where paternity is in dispute then with reasonable limits and in appropriate cases DNA testing of non-consenting adults may be ordered even at an interlocutory stage. The bid to establish the truth through scientific proof must however not be generalized and should never so lightly prevail over the right to bodily integrity and right to privacy until it is clear that such rights ought to be limited. The clarity is only established where an undoubted nexus is shown as well as a specified quest to protect or enforce specific rights. Untested and controverted affidavit evidence,may not suffice.”

13. I would not agree more. What the applicant has presented are affidavit's evidence and to allow it at this juncture would almost amount to compulsorly determining the process without giving the opportunity the opposing parties to interrogate the real nexus between the two deceased persons. In fact I dare to state that it shall be infringing on the privacy of other family members without giving them an opportunity to be heard.

14. By generalising that those who swore affidavits be compelled to undergo DNA test is so wide in the circumstances and too speculative and I find that their Constitutional rights would be violated.

15. Perhaps the court would have been prepared to consider such request if the late John was among the 4 children namely Geoffrey Kimutai, Erick Wekesa, Edwin Kiptum and David Kiptum whom it is alleged the late Choge stated that they have to undergo a DNA test. Infact, if indeed the deceased John, was recognised by the late Choge, there would, I believe, not too difficult for him to have stated so or otherwise ordered the DNA test to be undertaken like the 4 mentioned above.

16. Finally I find the timing of this application suspect. When the deceased Choge died on 14th December 2013 and this cause gazetted on 18/3/2015, what was so difficult in the late John who was an adult and over 50 years bringing any objection all along. Secondly and fundamentally, the applicant as well may need to offer an explanation why she had to wait till her son died then she brings this application. I do not think respectfully the same is brought in good faith.

17. Infact paragraph 7 of her affidavit tells it all, namely that she wants the late John to be enjoined in the paternity quest just like “the other Choge's children.”

18. I think I have stated enough to show that this application ought to fail. I do not find any legal or factual basis to allow it. The same is dismissed with costs.

Delivered on 27th day of February 2017.

_________________

H.K. CHEMITEI

JUDG

In the presence of;

Musyoka for family estate

Otieno for respondents

Katwa for the 3rd party

Mukabane for the interested party

Adisa for David Kiptum

Court Assistant - Kirong