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Case Brief · caselaw.co.ke
High CourtAllowedSuccession Cause (number not stated in judgment)· [2019] KEHC 6425 (KLR)

In re Estate of Christopher Njomo Kamau (Deceased) - Application for DNA testing

High Court of Kenya
25 June 2019
LAL. A. Achode
2,026 words in judgment
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The bottom line

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In Kenya, courts will order DNA testing in inheritance disputes if the need to find the truth outweighs privacy concerns.

What this practically means

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Executive summary

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In a succession matter concerning the estate of Christopher Njomo Kamau, two applicants claiming to be children of the deceased applied by chamber summons dated 25th February 2019 for orders compelling the deceased's children (the 2nd and 3rd respondents) to submit to sibling DNA testing at Lancet Laboratories, and, in the alternative, for the exhumation of the deceased's body at Langata Cemetery for sample extraction, with police security. The application was supported by an affidavit of Geraldine Nduta Nzomo, who produced photographs and M-Pesa statements showing transactions between the deceased and the applicants. The respondents opposed, arguing the applicants were strangers to the deceased, had delayed three years after confirmation of the grant, and that exhumation would cause mental anguish; they also challenged the M-Pesa statements for non-compliance with Section 65(8) of the Evidence Act. The court identified a single issue: whether an order for sibling DNA testing was appropriate. It weighed two competing approaches - requiring a prior nexus versus truth-finding - and found the photographs of the deceased with the applicants sufficient evidence of a nexus. Holding that paternity was central and that inconvenience and privacy intrusion were outweighed by the need to resolve inheritance, the court allowed prayer 1 outright, granted prayers 2, 3 and 4 conditionally (effective only if the 2nd and 3rd respondents failed to comply within 30 days), and ordered the applicants to meet the cost of the DNA test. Judgment delivered on 25th June 2019 by L. A. Achode, High Court Judge.

Key legal issues

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01

Whether an order for sibling DNA testing should issue in a succession dispute

Holding

Yes. The court adopted the truth-finding approach, holding that inconvenience and intrusion on privacy are outweighed by the need to resolve paternity and inheritance.

Reasoning

The court identified two schools of thought: one requiring a nexus before ordering DNA testing, the other favouring testing to establish truth. It found the photographs produced by the applicants sufficient to show a nexus, and held that inheritance rights were at stake, so the most accurate method of resolving paternity should be employed despite brief inconvenience to the respondents.

p. 3
02

Evidentiary value of M-Pesa statements and photographs

Holding

The M-Pesa statements were not verified by certificate under Section 65(8) of the Evidence Act and were challenged; the photographs, however, had great probative value showing a nexus.

Reasoning

The respondents challenged the electronic evidence under Section 65(8) of the Evidence Act, which governs computer-generated printouts and messages, noting no certificate was issued. The court accepted that criticism but independently found the photographs of the deceased with the applicants sufficient proof of a link, satisfying the nexus requirement for a DNA order.

p. 3

Legal principles established

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  • Where paternity is central to a succession dispute, the court may order DNA testing, weighing the intrusion on privacy and bodily integrity against the need to discover the truth.
  • A nexus between the applicant and the deceased may be established by photographic evidence of sufficient probative value, justifying a DNA order.

Court orders

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  1. 1.The application dated 25th February, 2019 allowed in the first instance in terms of prayer 1 (DNA sample extraction from the named persons)
  2. 2.Prayers 2, 3 and 4 (exhumation, Lancet Laboratories undertaking disinterment, police security) granted but effective only if the 2nd and 3rd Respondents fail to comply with prayer 1 within 30 days
  3. 3.The applicants to meet the cost of the DNA test

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2(5), 10, 11, 53(2), 159(2), 27, 37, 40, 50
  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A, 3B
  • Public Health Act Cap 242Section 146
  • Anatomy Act Cap 249Sections 5(2), 12
  • Law of Succession Act Cap 160Sections 47, 82, 83
  • Probate and Administration RulesRules 49, 73
  • Evidence Act Cap 80Sections 65(8), 107, 108, 109

Cases cited (2)

  • S.W.W. vs G.M.K.
    (2012) eKLR

    DNA testing is an intrusion of the right to bodily security, integrity and privacy; the applicant bears the burden of showing an overriding right.

  • Wilfred Karenge Gathiomi vs Joyce Wambui Mutura & Another
    (2016) eKLR

    Where paternity is alleged but unproven, sibling DNA testing is the scientific option and inconvenience does not outweigh finding a lasting solution.

Jurisdiction invoked
Sections 47, 82 and 83 of the Law of Succession Act Cap 160 and Rules 49 and 73 of the Probate and Administration Rules

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, "In re Estate of Christopher Njomo Kamau (Deceased) - Application for DNA testing", Case Analysis (2019). Succession Cause (number not stated in judgment). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.