[2024] KEHC 7989 (KLR)
The court found that the central issue in dispute was the paternity of the objector's children, which directly affects their entitlement in the deceased's estate. The court held that a sibling DNA test is the most effective and just method to resolve the paternity question. The court was persuaded by both local and...
Source-derived case information.
- Citation
- [2024] KEHC 7989 (KLR)
- Parties
- Applicant: Elizabeth Wairimu Njuguna; Applicant: Kennedy Gatura Njuguna; Respondent: Joyce Wairimu Kiriga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1493 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Sibling Dna Testing
- Outcome
- application allowed
- Judges
- PM Nyaundi
- Legal Topics
- Paternity Disputes, Dna Testing, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wairimu Njuguna
Applicant
Kennedy Gatura Njuguna
Applicant
Joyce Wairimu Kiriga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Sibling Dna Testing
Legal Issues
- 1 Whether a sibling DNA test should be ordered to determine the paternity of the objector's children for succession purposes.
Ratio Decidendi
The court found that the central issue in dispute was the paternity of the objector's children, which directly affects their entitlement in the deceased's estate. The court held that a sibling DNA test is the most effective and just method to resolve the paternity question. The court was persuaded by both local and foreign jurisprudence that the pursuit of truth in paternity disputes outweighs privacy concerns, particularly where the best interests of the children and the proper administration of the estate are involved. The respondent did not offer any viable alternative to DNA testing. Therefore, the application for sibling DNA testing was merited and allowed, with the costs to be borne...
Court Disposition
application allowed
Orders
- Sibling DNA examination to be conducted to determine paternity of the objector's children JWG and BMG, with samples extracted from the 2nd applicant.
- Samples to be extracted and tested at Kenya Medical Research Institute (KEMRI), Nairobi within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
In re Estate of Wilson Mburu Gataru (Deceased) (Succession Cause 1493 of 2013) [2024] KEHC 7989 (KLR) (Family) (21 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7989 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 1493 of 2013
PM Nyaundi, J
June 21, 2024
IN THE MATTER OF THE ESTATE OF WILSON MBURU GATARU (DECEASED)
Between
Elizabeth Wairimu Njuguna
1st Applicant
Kennedy Gatura Njuguna
2nd Applicant
and
Joyce Wairimu Kiriga
Respondent
Ruling
1. The deceased herein Wilson Mburu Gatura died intestate on 22nd November 2010. On 24th March 2011, his wife, Elizabeth Wairimu Njuguna (hereinafter the 1st applicant) and his son, Kennedy Gatura Njuguna (the 2nd applicant) petitioned for a grant of letters of administration. The grant was issued to them on 20th September 2011 and was confirmed on 29th May 2012.
2. The Respondent’s attempt to revoke the grant was revoked, vide ruling dated 9th May 2019 by Justice Farah S.M. Amin (as she was then). This ruling was successfully reviewed with an order that the matter be heard de novo.
3. The Application for determination is dated 17th April 2015 with the applicants seeking: an order that the Objector’s children JWG and BMG be ordered to undergo a DNA test together with the 1st Applicant’s children to confirm whether they are the biological children of the deceased.
4. It is submitted that it is in the interests of justice that the paternity of the minors be determined. The Respondent filed grounds of opposition dated 3/11/2015. The Court directed that the Application be canvassed via written submissions.
5. The Applicants submissions are dated 27th February 2024. Counsel contended that DNA test was the only effective way of determining paternity of the Objector’s children. In support of this proposition, counsel relied on the decision in Nairobi High Court Succession Cause No. 123 of 2017; in the matter of the Estate of the late J.K.
Analysis And Determination. 6. The only issue for determination is whether the summons dated 17th April 2015 is merited.
7. From the pleadings of both parties, it is conceded that the 1st applicant’s children were sired by the deceased. It is possible to determine paternity by undertaking a sibling DNA testing to confirm whether or not they are of the same father.
8. Paternity is at the center of the dispute. It will not prejudice the Respondent and her children at all as she has not offered an alternative on how to resolve the impasse. I am persuaded by the reasoning of Hon. Eric Ogola J in re Estate of John Samwel Gachuma Mbugua (Deceased) (Succession Cause 687 of 2020) [2023] KEHC 25409 (KLR) (Family) (14 November 2023) (Ruling) where he cited with approval the decision in the High Court South Africa, Bother vs Dreyer (now Moller) High Court of South Africa (Trans Vaal Province) Case No.4421/08(unreported) and Judge J.R. Murphy stated;“In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of the truth should prevail over the idea that the rights to privacy and bodily integrity should be respected. - see Kemp. Proof of Consent or Compulsion (1986) 49 THRHR 271 at 279-81. I also take the position, and I will return to this more fully, later, that it will most often be in the best interest of a child to have any doubts about the paternity resolved and put beyond doubt by the best evidence”
9. Accordingly, the application is merited and therefore allowed with the following orders
a. Sibling DNA examination shall be conducted to determine paternity of the objector’s children namely JWG and BMG. Samples shall be extracted from the 2nd Applicant for testing.b. The samples shall be extracted and test undertaken at Kenya Medical Research Institute(KEMRI), Nairobi within 14 days from the date hereofc. That the Kenya Medical Research Institute to submit their report within 30 days from the date of receipt of samples.d. The Cost of the test shall be met by the Estate of the Deceasede. No order as to costs
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF JUNE, 2024. P M NYAUNDIJUDGEIn the presence of:Fardosa Court Assistant