Faaf v Rfm & 2 others

The Court of Appeal, as a first appellate court, found no basis to disturb the trial judge's factual finding. The 1st respondent's evidence of long cohabitation from 2000, conversion to Islam in 2011 and solemnisation of the marriage with issuance of a certificate was unchallenged, and the appellant herself admitted she did not know where the deceased stayed when in Nairobi. The name discrepancy was explained by the marriage officer's insistence on a Swahili name, confirmed by the 2nd respondent.

The court relied on article 27 (equality and non-discrimination, including on grounds of birth), article 53(1)(d) and (e) (protection from harmful cultural practices and equal parental responsibility whether parents are married or not) and article 10 (national values binding state organs and courts). It followed CKC v ANC on the strict preconditions for invoking Islamic law to derogate from equality rights, and Revanasiddappa on the independent dignity and rights of children born in unsanctioned relationships.

The 3rd respondent was in a subsisting civil monogamous marriage that had never been dissolved when she purported to marry the deceased. Conversion to Islam does not dissolve a statutory marriage, and no authority supports treating a husband's seven-year desertion as a dissolution. Her claim that she was a dependant was not pressed as a separate success; the court nevertheless held her child entitled to benefit either as dependant or beneficiary.

There was no application before the trial judge for such an intrusive procedure, and paternity testing in a succession objection where the alleged father is dead should be resorted to sparingly, often requiring exhumation with futile results. In objection proceedings the burden lay on the objector, and the court could not make own-motion orders to assist proof of the objection. Moreover, the children were born during cohabitation and were treated by the deceased as his own during his lifetime, so they were entitled to benefit as dependants regardless of paternity, rendering the DNA issue moot.

There was no evidence of the outcome of the criminal proceedings against the 1st respondent, and the standard of proving forgery is very high, incapable of being met merely by an investigating officer's opinion. The retired civil registrar's testimony was factual evidence subject to the court's belief. Expert opinions, in any event, are not binding on the court, which may reject them where there is a proper and cogent basis.

Relying on Selle v Associated Motor Boat Co, Jabane v Olenja and Mbogo v Shah, the court reiterated the settled standard for a first appeal: reconsider and evaluate the evidence and draw its own conclusions, but defer to the trial judge's findings unless they lack evidential support or rest on wrong principles. Applying Kiruga v Kiruga and Watt v Thomas, an appellate court cannot substitute its own factual findings merely because it might have reached a different conclusion.