BGG & another v EWK & another (Civil Application E584 of 2023) [2024] KECA 484 (KLR)
The bottom line
#Kenya's Court of Appeal allowed DNA testing in a succession dispute, ruling a justified paternity test overrides privacy rights.
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 intended appeal is arguable under rule 5(2)(b) of the Court of Appeal Rules, 2022
- 2.Whether the intended appeal would be rendered nugatory if stay is not granted
Key legal issues
#Whether the intended appeal was arguable
The appeal was not arguable; even if a privacy point existed, the Court agreed the DNA test was justified and proportionate to the paternity dispute.
The Court identified the sole arguable point as whether the right to privacy supersedes the need for a DNA test. It held that the respondents can only establish their blood relationship with the deceased by proving paternity, no alternative means were offered, and the intrusion was justified. Article 53(2) on the child's best interests reinforced this. Having found the appeal not arguable, the second limb did not arise.
Whether Ruth Nyambura Chuchu barred the DNA order
Distinguished: unlike in Chuchu, the trial court here heard the parties on the DNA issue before deciding.
In Chuchu the trial court had made the DNA order suo moto without affording parties a hearing. Here parties were heard on the issue before the decision was reached, so the authority was distinguished and did not assist the applicants.
Legal principles established
#- The twin principles under rule 5(2)(b) - arguability and nugatory - must be determined conjunctively and to the Court's satisfaction.
- A DNA test order is an intrusive affair engaging Article 31 privacy rights; courts must tread carefully and the order must be justified on the facts.
- Where a paternity dispute is central to a succession cause, a justified DNA test overrides the right to privacy under Article 31, and a child's best interests under Article 53(2) are paramount.
Court orders
#- 1.Notice of Motion dated 13th December 2023 dismissed
- 2.Costs shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Succession Cause No. E687 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) & 31 of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the High Court order compelling DNA tests pending the intended appeal
The intended appeal was found not arguable, failing the first limb of the rule 5(2)(b) test
Costs
Costs shall abide the outcome of the appeal.
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.
It is now settled that an applicant need not demonstrate a litany of arguable points. It is suficient even if there be a solitary arguable point.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
In conclusion, we find that the Notice of Motion dated 13th December 2013 is devoid of merit and we hereby dismissed it. Costs shall abide the outcome of the appeal.
Issues in the judgment
#The application date is inconsistently stated - the Motion is dated 13th December 2023 throughout, but the conclusion refers to a Notice of Motion dated 13th December 2013.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BGG & another v EWK & another (Civil Application E584 of 2023) [2024] KECA 484 (KLR)", Case Analysis (2024). Civil Application (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/484/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.