E.M.M v I.G.M & another [2013] KECA 37 (KLR)
The bottom line
#The Court of Appeal dismissed a man's claim to inherit a deceased's estate because DNA testing ruled him out and occasional support didn't make him a dependant.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant proved paternity on a balance of probabilities
The DNA evidence and the surrounding circumstances (blank birth certificate, deed poll without paternal declaration, pupil record) ruled out the appellant as a biological son of the deceased.
The court evaluated the DNA reports of the Government Chemist and the appellant's expert, Dr Mpoke. Both agreed the appellant did not share a father with the deceased's three children; Dr Mpoke's reservation wrongly questioned the presumption of legitimacy under section 118 of the Evidence Act. Documentary evidence - the blank space for the father in the birth certificate and pupil record, and the deed poll in which the deceased deliberately excluded himself as parent - undermined the paternity claim. The trial judge's finding was therefore correct.
Reliability of DNA sibling testing without a primary sample from the deceased
The court rejected the appellant's challenge to the DNA evidence, holding the results conclusive, and held that the UK Family Law Reform Act limitations on blood testing do not apply to DNA testing.
The court found the appellant's own expert did not dispute the Government Chemist's core finding. The UK Family Law Reform Act 1969, s. 20, on which the appellant relied, relates to blood testing, not DNA testing, so its limitations were inapplicable; the US State Department manual was an internal visa-processing document of no general application; and the Cellmark literature itself confirmed that Y-chromosome testing can conclusively exclude a shared father.
Scope of the appeal - paternity only, or dependency under section 29(b) as well
The appeal was not restricted to paternity; it also encompassed whether the appellant was a child taken into the deceased's family and maintained immediately before his death.
The court relied on the consent order of 24 January 2006, the pleadings and affidavits, the evidence led, and the fact that the trial judge pronounced herself on both issues. It therefore determined dependency alongside paternity.
Whether the appellant was a dependant under section 29(b) / a child under section 3(2) of the Law of Succession Act
No; the appellant failed to show permanent responsibility or that the deceased took him into his family as his own. Episodic support, chiefly school fees in India, did not suffice.
Beyond the appellant's and his mother's assertions, no evidence of support at Nairobi Primary or Nairobi School was adduced; the pupil record showed the mother paid fees. The appellant never lived in or visited the deceased's home. The deceased supported several other needy children, and the widow herself continued supporting the appellant after his death. Support was therefore acts of generosity, not assumption of permanent responsibility.
Legal principles established
#- On a first appeal the Court of Appeal considers and evaluates the evidence afresh, allowing for the fact that it did not see or hear the witnesses.
- An appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, on a misapprehension of the evidence, or on a wrong principle.
- The evidence of an expert must be considered along with all other available evidence, and it remains the duty of the court to decide whether or not to believe the expert and give reasons for its decision.
- For a person to qualify as a child whom the deceased 'expressly recognized or in fact accepted' under section 3(2) of the Law of Succession Act, there must be a reasonable degree of permanency in the responsibility voluntarily assumed; episodic support will not suffice.
- A child born to a married woman during the subsistence of marriage is conclusively presumed to be a child of the husband under section 118 of the Evidence Act.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- H.S.C. No. 470 of 1990
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act / appellate jurisdiction of the Court of Appeal (no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "E.M.M v I.G.M & another [2013] KECA 37 (KLR)", Case Analysis (2013). Civil Appeal No. 114 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/37/eng@2013-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.