[2025] KEHC 6580 (KLR)

Parties

Procedural Posture

Miscellaneous Application / Ruling on Interlocutory Application

Legal Issues

1. 1 Whether the court should order preservation of the body of the deceased pending DNA testing and burial arrangements.
2. 2 Whether the plaintiff is entitled to orders restraining burial until paternity is confirmed.
3. 3 Whether the application for withdrawal of suit meets the requirements under Order 25 of the Civil Procedure Rules.

Ratio Decidendi

The court found that the application met the threshold under Order 25 of the Civil Procedure Rules for withdrawal or discontinuance of a suit. The applicant demonstrated a legitimate interest in the preservation of the deceased's body for purposes of DNA testing to establish paternity, which is central to the dispute. The court recognized the applicant's right to seek such orders to prevent irreparable harm and avoid the need for exhumation after burial. The authorities cited affirm that a party's right to withdraw a suit cannot be curtailed, and the court's role is limited to making appropriate orders as to costs. In the circumstances, the court granted the orders sought for preservation...

Court Disposition

application allowed

Orders

• The body of the late Francis Koech shall be preserved at Eldoret Hospital Mortuary pending DNA testing.
• Specimen for DNA shall be extracted for testing to confirm paternity.