BKN & another v TNW [2019] KECA 466 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that birth records and witnesses can prove a child's paternity after death, entitling them to inherit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the issues in question are children of the deceased for purposes of the law of succession
- 2.Whether the respondent discharged the legal and evidential burden of proving the paternity of the three children
- 3.Whether the trial court shifted the burden of proof to the appellants, including by mentioning DNA testing
- 4.Whether the trial judge was biased in her treatment of the evidence
Key legal issues
#Whether the three children of the respondent were children of the deceased for purposes of the Law of Succession Act
Yes. The evidence of the respondent, PW2 and PW3, the foundation birth documents, the 1st appellant's own affidavit and her advocate's letter to the Commissioner of Police, and the photograph established paternity on a balance of probability.
The respondent produced birth notification and birth register foundation documents lodged before the deceased died, authenticated by officers of the Registrar of Births and Deaths, with no rebuttal by the appellants. Under section 12 of the Registration of Births and Deaths Act the deceased's name could only have been entered at the joint request of the parents or upon proof of marriage or recognized custom. Evidence of cohabitation, dowry, chiefs' testimony and the unchallenged photograph further confirmed the relationship. The appellants challenged the paternity of only one child, and that challenge was debunked.
Burden and evidential burden of proof
The respondent discharged both the legal and evidential burdens; the trial court did not improperly shift the burden to the appellants.
Applying Gatirau Peter Munya v Dickson Mwenda Kithinji, the person alleging paternity bears the initial legal burden; once discharged, the evidential burden shifts to the opposing party. The respondent produced documents and witnesses; the appellants, who said they would prove the respondent was married to another man, never did so. The trial court's observation that there was no evidence of other relations, and its mention of DNA testing as a remedy, did not amount to shifting the burden.
Whether DNA testing was properly raised
DNA was not pleaded and no party requested it; the judge merely mentioned it as a possible remedy for a dissatisfied party.
Each party is bound by pleadings; the respondent having pleaded that the children were biological offspring of the deceased and having proved it with documents and witnesses, no DNA test was necessary. The learned judge's mention of DNA suggested a means by which the appellants, if dissatisfied, could have discharged the evidential burden, and did not shift the burden of proof to them.
Alleged bias of the trial judge
No bias was discernible. The trial court rightly treated PW2 and PW3 as independent public servants, while DW1's testimony was of no value on the contested issue.
The court record did not demonstrate bias. The chiefs PW2 and PW3 were treated as independent witnesses by virtue of their public service positions. DW1, also a chief, testified only that the respondent's father was alive, which had nothing to do with paternity and was of no value on the issue in contestation. The manner in which the judge treated the evidence disclosed no bias.
Whether the respondent was a wife of the deceased entitled to benefit from the estate
The trial court made no finding on whether the respondent was a wife of the deceased, and no cross-appeal was lodged on that aspect, so the Court did not decide it.
Although the respondent claimed to have married the deceased under Luhya customary law and her witnesses described a polygamous set-up, the learned Judge found no proof of a traditional Luhya marriage or prolonged cohabitation of repute, and instead benefited the children under section 29 of the Law of Succession Act. The appellants did not appeal that finding on the wife question and the respondent filed no cross-appeal, so the point was not before this Court.
Legal principles established
#- On a first appeal, the appellate court must re-evaluate the evidence and reach its own independent conclusions, while paying deference to the trial court's findings on demeanor of witnesses.
- The party who alleges paternity bears the initial legal burden of proof, which once discharged shifts the evidential burden to the opposing party to rebut.
- Foundation documents (birth notifications and birth registers) lodged before a deceased's death prove paternity even where the birth certificate itself was issued after death, absent evidence in rebuttal.
- Under the Law of Succession Act, a child includes one whom a male person has expressly recognized, in fact accepted as his own, or for whom he has voluntarily assumed permanent responsibility, and such children qualify as dependants entitled to a share of the estate.
- A court cannot be faulted for declining to presume paternity issues into a case; DNA testing not pleaded and not requested is a non-issue and mentioning it as a possible remedy does not shift the burden of proof.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- HC P & A Cause No. 27 of 2001
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in succession (probate and administration) matters
Relief refused
#The appellants' appeal against the finding that the three children were children of the deceased entitled to inherit
The respondent discharged both the legal and evidential burdens of proof; the finding of the trial court was not shown to be wrong
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that we find no reason to interfere with the finding by the trial court and therefore the appeal fails and is dismissed with costs to the respondent.
This is a first appeal, and being so, it is our duty to re-evaluate the evidence tendered in the trial court and come up with our own independent findings and conclusions
The person who makes such allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge.
So it matters not that the birth certificates were produced after the death of the deceased. The respondent took all the necessary steps to prove what she alleged and as such discharged her evidential as well as burden of proof
any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility
… wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death ….
With regard to DNA testing, it is to our mind a non-issue. It was not pleaded and no party requested for one.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BKN & another v TNW [2019] KECA 466 (KLR)", Case Analysis (2019). Civil Appeal No 73 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/466/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.