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Court of AppealDismissedCivil Appeal No. 114 of 2012· [2013] KECA 37 (KLR)

E.M.M v I.G.M & another [2013] KECA 37 (KLR)

Court of Appeal of Kenya
25 October 2013
8,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This Court of Appeal at Nairobi judgment (Karanja, M'Inoti and Murgor, JJ.A) disposed of a first appeal by E M M against the decision of Rawal, J of 29 January 2010 in H.S.C. No. 470 of 1990, which dismissed his protest in the estate of the late G M M. The appellant, claiming to be a biological son of the deceased, sought inclusion as a co-administrator and beneficiary. The dispute ran for over two decades through multiple decisions, including a 2005 Court of Appeal decision that remitted the protest for hearing, and involved disinterment of the deceased's remains for DNA testing after which no primary sample could be extracted and sibling testing was performed. The Court framed the issues as whether the appellant proved paternity on a balance of probabilities, whether the DNA evidence was reliable, and whether he was alternatively a dependant under section 29(b) of the Law of Succession Act. The Court held the DNA sibling testing conclusive, that the appellant's own expert's reservations were legally misconceived given the presumption of legitimacy under section 118 of the Evidence Act, and that the blank birth certificate and pupil record and the deed poll, which excluded the deceased as parent, undermined the claim. On dependency, the Court held that a reasonable degree of permanency in assumed responsibility is required and that episodic support, chiefly school fees while the appellant studied in India, did not suffice, especially as the appellant never lived in or visited the deceased's home. The appeal was dismissed with costs, affirming the decision below. This is now binding authority on the permanency requirement for dependency under section 29(b) and on the treatment of DNA evidence in paternity disputes.

Key legal issues

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01

Whether the appellant proved paternity on a balance of probabilities

Holding

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.

Reasoning

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.

p. 13
02

Reliability of DNA sibling testing without a primary sample from the deceased

Holding

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.

Reasoning

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.

p. 12
03

Scope of the appeal - paternity only, or dependency under section 29(b) as well

Holding

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.

Reasoning

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.

p. 10
04

Whether the appellant was a dependant under section 29(b) / a child under section 3(2) of the Law of Succession Act

Holding

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.

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Law of Succession Act, Cap 160 Laws of KenyaSection 3(2)
  • Law of Succession Act, Cap 160 Laws of KenyaSection 3(3)
  • Law of Succession Act, Cap 160 Laws of KenyaSection 29
  • Law of Succession Act, Cap 160 Laws of KenyaSection 29(a)
  • Law of Succession Act, Cap 160 Laws of KenyaSection 29(b)
  • Evidence Act, Cap 80 Laws of KenyaSection 118
  • Exchange Control Act, Cap 113 Laws of KenyaGeneral
  • United Kingdom Family Law Reform Act, 1969Section 20(1)

Cases cited (9)

  • MACHARIA VS NJOMO & ANOTHER
    (2008) 1 KLR (G&F) 754
  • NDOLO VS NDOLO
    (2008) 1 KLR (G&F) 742
  • JOHN NDUNG'U MUBEA VS MILKA NYAMBURA MUBEA
    CA NO. 76 OF 1980
  • WELLINGSTONE MUCHIGI KIMARI VS RAHAB WANJIRU MUGO
    CA NO. 168 OF 1990
  • KIMANI MATHENGE MURIUKI & 2 OTHERS VS PATRICIA M. MURIUKI & ANOTHER
    HC SUCCESSION CAUSE NO. 976 OF 1994
  • SELLE AND ANOTHER V ASSOCIATED MOTOR BOAT COMPANY LTD & OTHERS
    [1968] EA 123
  • RAMJI RATNA AND COMPANY LIMITED V WOOD PRODUCTS (KENYA) LIMITED
    CA NO. 117 OF 2001
  • HANH VS SINGH
    (1985) KLR 716
  • EPHANTUS MWANGI AND ANOTHER V DUNCAN MWANGI WAMBUGU
    [1982-88] 1 KAR 278
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.