[2022] KEHC 14781 (KLR)

Miya v Eboya & another (Succession Cause 568 of 2008) [2022] KEHC 14781 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14781 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 568 of 2008

MA Odero, J

October 7, 2022

Between

Dorah Awinja Miya

Applicant

and

Rose Kihenzani Eboya

1st Respondent

Esther Ayoma Miya

2nd Respondent

Ruling

1. Before this court for determination is the notice of motion application dated April 22, 2022 by which the applicant Dorah Awinja Miya seeks the following orders:-“1. That this honourable court do find and hold the 1st and 2nd respondents guilty of contempt of court for their failure and/or refusal to comply with this honourable court orders made on February 25, 2019 and October 31, 2019. 2.That this honourable court do commit the 1st and 2nd respondents to civil jail for contempt of court for a period not exceeding six months, or any other punishment that this court deems fair and just in the circumstances of the case.3. That thereafter, this honourable court be pleased to compel the respondents to comply with the orders made by this court on February 25, 2019 and October 31, 2019 directing the respondents to submit to a DNA test with the government chemist on a date that the court will direct, or within such period as the court shall direct.4. That the costs of this application be borne by the respondents.”

2. The application which was premised upon section 5 of the Judicature Act, (cap 8) Laws of Kenya. Rules 81. 4 and 8. 10 of the Civil Procedure (Amendment No. 2) Rules, 2012 at the Senior Courts of England and Wales and County Courts of England and Wales was supported by the Affidavit of even date sworn by the applicant.

3. The respondent opposed the application through the replying affidavit dated May 18, 2022 sworn by the 1st respondent Rose Kahenzani Eboya. The matter was canvassed by way of written submissions. The applicant filed the written submissions dated June 24, 2022 whilst the respondents filed written submissions dated June 28, 2022.

Background 4. This succession cause relates to the estate of the late Moses Johnstone Miya who died intestate at the Kenyatta Hospital on the November 20, 2007. According to a letter authored by the chief of Yala Township location, the deceased was survived by the following persons:-i.Dora Awinja – 1st widowii.Jacob Miya – soniii.Daniel Okore – soniv.Rose Kahenzani Eboya – 2nd widowv.Esther Ayoma Miya – daughter

5. The cause has had a long history in the corridors of justice. The question of paternity of the 2nd respondent the child which the 1st applicant claims was sired by the deceased became an issue during the hearings. On February 25, 2019 and October 31, 2019 the court made orders directing the respondents to submit themselves toDNA testing with the government chemist.

6. The applicant in her application argues that the respondents have refused and/or declined to comply with the orders of the court. That the respondents have deployed several tactics in an attempt to circumvent the orders including filing an appeal claiming unsuitability of dates and claiming indisposition thereby failing to comply with said orders forDNA testing.

7. On their part the respondents deny that they have willfully declined to comply with the orders of the court. The 1st respondent explains that they went to the government chemist who advised that given that the deceased had been dead and buried for over ten (10) years it would not be possible to obtain suitable DNA samples through exhumation of the body. The doctor instead recommended that DNA samples be obtained from the biological mothers and all their biological children to allow for a wider gene pool for better comparison. The doctor recommended that a wider gene pool be sourced from other relatives like female aunties of the deceased.

8. The 1st respondent states that the persons (relatives) who were required to submit samples for DNA testing have not all done so. The 1st respondent goes on to suggest that Jacob Miya (the son of the applicant) may not in actual fact have been sired by the deceased.

9. The 1st respondent goes on to claim that to submit her daughter to DNA testing may disturb the peace of the deceased who loved his daughter dearly. The respondent pray that the present application be dismissed.

Analysis and Determination 10. I have carefully considered the application before the court, the replying affidavit filed as well as the written submissions filed by both parties. The only issue for determination is whether the respondent is in contempt of court orders.

11. It is common ground that the High Court has issued two (2) orders respecting the DNA sampling in this case. On February 25, 2019 hon Lady Justice Ali-Aroni made the following orders:-“1. That by consent of Esther Ayoma Minya and Jacob Nganyi Miya the 2 will submit for a sibling DNA at an institution to be agreed upon by the parties within 14 days.2. That the respondent to meet the cost.3. That......”

12. Thereafter on October 31, 2019 Justice Ali-Aroni in a ruling dated October 31, 2019 considered recommendations made by the government chemist and made the following orders:-“5. Having considered the sentiments by both counsel for both sides I am inclined to go along with the expert opinion of the Government chemist to have the DNA test with all biological mothers and tier children to enhance accuracy of the results. I see no cause to invite third parties for the test.6. Consequently, I direct that Rose Kihenzani Eboya and Esther Ayona Miya together with Dorah Awinja Miya, Jacob Nganyi and Daniel Okore Libale do submit to the DNA test with government chemist at a date to be agreed upon and not later than 15 days from the date hereof.”

13. Despite the existence of no less than two (2) court orders in respect of the same issue to date no DNA test has been conducted.

14. Section 5 of the Judicature Act cap 8 Laws of Kenya confers jurisdiction on the superior courts to punish for contempt. Contempt of court is that conduct or action that defies or disrespects authority of court. Black’s Law Dictionary 9th Edition, defines contempt as:-“The act or state of despising; the conduct of being despised, conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”

15. R v Attorney General & anotherExparteMike Maina Kamau[2020] eKLR it was held that:-“an applicant for contempt of court should prove that the terms of the order were clear and unambiguous and binding on the defendant; that the defendant had knowledge or proper notice of the orders; that he acted in breach of the terms of the order and that his conduct was deliberate.”

16. The orders made by the High Court on February 25, 2019 and October 31, 2019 were clear and unambiguous. The respondent were fully aware of said order and at no time have the respondents denied knowledge of the existence of the said orders.

17. Instead of complying with the clear orders of the court the respondents have chosen to prevaricate back and delay through a range of actions. Firstly, the respondents filed an application in the Court of Appeal seeking to stay execution of the orders made on October 31, 2019. That application was dismissed by the court of Appeal vide the ruling delivered on May 21, 2021. Thereafter vide a letter dated October 22, 2022 the respondents Advocate intimated their dissatisfaction with the decision of the Court of Appeal and indicated that they would be moving to the Supreme Court of Kenya. To date it is not clear if any application/appeal has been lodged in the Supreme Court. In any event the orders made by the High Court have not been stayed.

18. Thereafter the respondents came up to with the notion that the number of persons to be included in the DNA sampling ought to be expanded. Firstly, the respondents are not medical experts and/or scientists. They presented no expert opinion in support of this contention that the pool of relatives be expanded. Moreover I find that the issue or concern was already addressed by Justice Ali-Aroni in her ruling of October 31, 2019 directed that a third party (the applicant herein) be included in the testing in order to enhance accuracy of the results.

19. Still not satisfied the respondent have now resorted to casting aspersions on the paternity of the Jacob Miya who is the applicants son. This cause was instituted in the year 2008 almost fourteen (14) years ago. If the respondents had genuine concerns about the paternity of Jacob then they ought to have raised them before now. This is clearly a red herring being thrown in by the respondents in an attempt to cloud issues and to divert attention from the real issue being their non-compliance with court orders.

20. I have perused the correspondence annexed to the applicants supporting affidavit dated April 22, 2022. There has clearly been much back and forth, on the issue of DNA testing with the respondents trying every trick in the book to avoid subjecting themselves to testing. Why this morbid fear of the DNA testing? What is it that the respondent wish to keep concealed?

21. All in all the bottom line is that the respondents have failed to comply with clear court orders of which they were fully aware. It is not open to litigant to impose conditions on their compliance. This is precisely what the respondents are trying to do by insisting that they will only present themselves for testing if the pool of relatives to be tested is expanded.

22. The orders made by the court were directed to specific persons. All the persons named in the orders are under an obligation to comply with said orders. Courts do not make orders in vain. It is not for a litigant to decide whether or not to obey court orders. It is clear that the respondents have failed to obey a court order. This defiance cannot be overlooked and/or taken lightly.

24. In the case ofeconet wireless kenya ltd vs minister for information & communication of kenya & another [2005] eKLR Hon Justice Ibrahim held:-“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void. (emphasis)

25. Likewise in Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR, the court stated that-“The reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with direction of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. Without sanctions for contempt, there would be a serious threat to the rule of law and administration of justice. For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him.”

26. The respondents have run out of options. The orders made on February 25, 2019 and October 31, 2019 remain valid and enforceable. By deliberately failing to comply with court orders of which they were fully aware, I find that the respondents are in contempt of said orders.

27. However since this is a family matter and in order to allow the respondents a final opportunity to comply I direct that the two respondents present themselves at the government chemist for DNA sampling within seven (7) days of the date of this ruling. In event of failure to comply, I direct that the two respondents be committed civil jail for a period of thirty (30) days each. The respondents are directed to pay the costs for this application.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. MAUREEN A. ODEROJUDGE