[2017] KEHC 9381 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 3270 OF 2003

IN THE MATTER OF THE ESTATE OF NJOKA WA KIORIA (DECEASED)

KIORIAH NJOKA……………….. APPLICANT/PETITIONER

VERSUS

CATHERINE GATHONI NJOKA…………1ST RESPONDENT

KENNEDY KIORIAH NJOKA……………2ND RESPONDENT

RULING

1. The deceased Njoka Wa Kioria died intestate on 11th October 2002 at the Kenyatta Hospital. On 12th November 2003 his widow Esther Wagikondi Njoka (now deceased) and son Kioriah Njoka (the applicant) petitioned the court for the grant of letters of administration intestate. The grant was issued to them on 14th November 2004. The other children of the deceased as shown in the petition were Lucy Muthoni Njoka, Jane Wangechi Njoka, Anne Wangari Njoka, Gikonyo Njoka, Waitherero, Peter Nguru Njoka, Elizabeth Wanjiru Njoka and Mary Wangui Njoka.

2. Subsequently, a couple (Titus Kiragu and Susan Kiragu) came into the cause to claim 100 acres from the estate’s LR No. 10317/14, saying that they had bought it from the deceased before his death but that he had not transferred it. The petitioner’s case was that the deceased had sold them 50 acres, not 100 acres. The dispute is outstanding.

3. The respondents came into the cause to claim that they were the children of the deceased; that their mother was the late Jacinta Muthoni Njoka who was married to the deceased for about six years during which they were born. Jacinta subsequently died after she had separated from the deceased. They sought to be recognized as the children and beneficiaries of the estate of the deceased. They acknowledged that the late Esther Wakigondi Njoka and her children constituted the first house. The petitioners (Esther and Kioriah) and the rest of the family denied that the deceased had another family, wife, or children.

4. The issue whether the respondents were the children of the deceased, and therefore beneficiaries of the estate was heard by the calling of witnesses. The dispute was heard by Justices Koome (as she then was) and Dulu. It was then taken over by Justice Kimaru who delivered a judgement on 9th October 2014. After considering the evidence on record, he decided that the paternity of the respondents could only be conclusively determined by DNA testing. He ordered that:

“…..with a view of resolving the case with certainty, this court hereby orders the 3rd and 4th applicants, and the respondent and his two sisters Jane Wangechi Njoka and Anne Wangari Njoka shall submit their respective biological samples to the Government Chemist for purposes of ascertaining their paternity through DNA. The purpose of the DNA test is to determine whether the father of the 3rd and 4th applicants is the same as the father of the respondents, Kioriah Njoka, Jane Wangechi Njoka and Anne Wangari Njoka. The said parties shall submit their biological samples to the Government Chemist within fourteen (14) days of the delivery of this judgment. The costs of the DNA examination shall be borne by each party…..”

5. On 23rd October 2014 the applicant filed a Notice of Appeal. He was dissatisfied with the order for DNA and was appealing to the Court of Appeal.

6. On 8th February 2017 the applicant filed the present application under Order 42 rule 6 of the Civil Procedure Rules seeking the stay of execution of the judgment, decree and all consequential orders made on 9th October 2014 pending the hearing and determination of the appeal. The application was supported by the applicant’s affidavit as well as affidavits from Jane Wangechi Njoka and Anne Wangari Njoka. Their case was that there was no evidence upon which the court made the order for DNA testing, as the respondents had not shown that they were children of the deceased; that to ask them to be subjected to DNA was tantamount to shifting the burden of proof from the respondents to them, yet it was the respondents who had claimed to be the children of the deceased; and, that to subject them to DNA testing would be contravening their fundamental rights and freedoms to privacy, conscience, religion, belief and opinion.

7. The respondents’ response was that the application for stay was an afterthought, brought too late in the day; the applicant was in contempt of court order to submit himself to DNA testing; and that it had not been shown that substantial loss would be occasioned if the stay was not granted. Further, the respondents contended that Order 42 rule 6 and Order 51 of the Civil Procedure Rules and sections 1A, 3Aand63(1) of the Civil Procedure Act under which the application had been filed were inapplicable as they had not been imported into succession matters by rule 63 of the Probate and Administration Rulesof the Law of Succession Act (Cap.160).

8. Counsel for the respective parties filed written submissions which I have considered.

9. Under Order 42 rule 6(1) of the Civil Procedure Rules the Court appealed from has the power to grant stay of execution pending the hearing and determination of the appeal on condition that substantial loss may result to the applicant unless the order is made, the application has been made without delay, and security for the due performance of the decree has been provided (Kwa Hola Pharmacy –v- Copy Cat Coast Ltd [2002]2KLR 269).

10. Beginning with the question whether the application was filed timeously, it is notable that the judgment being appealed against was delivered on 9th October 2014 and the Notice of Appeal was filed on 23rd October 2014. The present application was filed on 8th February 2017, about two years and four months later. In all the affidavits sworn by Jane Wangechi Njoka, Anne Wangari Njoka and the applicant there was no attempt to explain why the application could not be filed soon following the filing of the Notice of Appeal. There was no attempt to show that 8th February 2017 was the earliest opportunity for the application to be filed. Parties who seek justice undertake to, among other things, assist the court in the expeditious disposal of litigation. If the applicant sought to arrest the order for DNA testing by appealing against it, he ought to have timeously applied for stay. I find that, in the circumstances of this case, there was inexplicable and inordinate delay in bringing the application.

11. The next issue is whether the applicant has demonstrated that he will suffer substantial loss if the application is not granted. In Machira T/a Machira & Co. Advocates –v- East Africa Standard (No. 2) [2002]KLR 63, it was observed as follows:-

“……... to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to second principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural rules which is acknowledged and normally must be put into effect by the way applications for stay as for the proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”

12. In the case of Andrew Kuria Njuguna –v- Rose Kuria, HCCC No. 224 of 2001 at Nairobi ([2010]eKLR) it was stated as follows:-

“Coming to the substantial loss likely to be suffered by the applicant if the stay order is not granted, she was bound to place before the court such material and information that should lead this court to conclude that surely she stood a risk of suffering substantial loss moneywise or other, and therefore grant the stay.”

Going back to Machira t/a Machira & Co. Advocate –v- East African Standard (No. 2) (above), it was held that:

“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result he must prove specific details and particulars – where no preliminary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay……”

13. The applicant stated that he would suffer irreparable loss if stay is not granted and DNA testing proceeds against him. He stated as follows:

“10. THAT I verily believe that my fundamental rights and freedoms under the Constitution are in grave danger of being violated if I undergo DNA test before my appeal is heard as there is when I will know whether or not the order subjecting me to the same is in accordance with the Constitution and the law.”

It was submitted for the applicant that he had not been awarded a fair hearing under Article 50 of the Constitution, and then the burden of proof had been shifted to him and yet it was upon the respondents to show that they were the children of the deceased; that, in accordance with the decision in Kenya Shell Limited –v- Kaburu & Another [1986] KLR 410, the appeal would be rendered nugatory if the application is not granted.

14. This court cannot deal with the merits of the appeal. However, one has to be alive to the question at the heart of the dispute between the applicant and the respondents. The question is whether or not the respondents were sired by the deceased; whether the respondents and the applicant shared a father (the deceased). Evidence was led one way, or the other, and, ultimately, the court decided this DNA testing would provide a scientific, and conclusive way, to the dispute. If it is found the respondents were the children of the deceased, they will benefit from the estate. If the DNA test shows that they were not the children of the deceased the applicant and his siblings will exclusively share the estate. The applicant states that substantial justice will be served by the issue of paternity not being decided in this scientific way; that he will suffer irreparably if this question is answered by DNA testing. I am unable to agree with the applicant. DNA testing may be intrusive, inconvenient and against his beliefs and those of his siblings. But, the need to conclusively deal with this issue of paternity so as to decide to whom, and in what proportions, the estate of the deceased shall go would serve the wider interests of justice in this case.

15. These are the reasons why I find that the applicant will not suffer substantial loss if the application is not granted. Consequently, I dismiss the application dated 3rd February 2017 and filed on 8th February 2017 by the applicant. Given the facts of the dispute, I do not make any order as to costs.

SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.

W. MUSYOKA

JUDGE