Naomi Chepkorir Langat v Agnes Chebet Ng’etich

3. She avers that she is the lawfully wedded wife of the deceased, Joel Kimetet Langat. 4. She avers that the Objector, Agnes Chebet Ngetich, has presented birth certificates in support of her claim that her children are heirs of the deceased. 5. She avers that one of the said birth certificates was allegedly amended to include the deceased's name in the year 2023, despite the deceased having passed away in 2020 and that it is highly suspicious that the Objector amended the birth certificate years after the death of the deceased and after the child's alleged initiation rites. 6. She avers that none of the witnesses called by the Objector testified on the paternity of her children. 7. She avers that she is therefore apprehensive that unless DNA testing is conducted, the objector may succeed in her claim without the necessary verification, leading to the wrongful distribution of the estate and further that it is in the interest of justice for this Court to order DNA testing to confirm the paternity before making any determination on the Objector's claims. 8. Agnes Chebet Ngetich the respondent filed a replying affidavit in response to the instant application. 9. She avers that the instant application is frivolous, unmerited and an affront to the integrity of this court. 10. She avers that the applicant has not laid a basis for an order of DnA testing and that DnA testing in its nature is intrusive and disruptive of a person' s bodily autonomy, integrity and security and cannot be granted on a whim. 11. She avers that she is not agreeable to the applicants move of volunteering her daughter for samples to establish her children’s paternity as her paternity remains unverified and the court were so inclined to grant orders for DNA testing then the remains of the deceased ought to be exhumed and the necessary samples extracted. 12. She avers that if the court were so inclined to grant order for DNA testing then applicants should be compelled to cover all the costs. She is adamant that the applicant is clatching at straws in a bid to deprive her and her children their rightful inheritance of the deceased’s estate. 13. The application came up for inter partes hearing and the court directed the parties to file written submissions. 14. The applicant maintained that she has demonstrated that there is a genuine and material dispute as to the paternity of the objector’s children and the only remedy is to subject the objector's children to DNA testing. She contended that in disputes concerning paternity within succession matters, Kenyan courts have consistently recognized DNA testing as a reliable and conclusive method of establishing biological relationships. The applicant cited the case of In re Estate of Kitur Chepsungulgei (Deceased) [2022] KEHC 9906 (KLR), the High Court emphasized the importance of DNA testing to resolve paternity disputes: "At the center of this dispute is the issue of the paternity of the Applicant which I am convinced that justice will only prevail if the said DNA test was to be undertaken so as to conclusively determine whether the Applicant is entitled to share in the estate of the deceased." 15. The respondent contended that article 28 of the Constitution of Kenya guarantees every person the right to human dignity, therefore, the broad and unsubstantiated request for DNA testing of all three children, without demonstrating any specific basis for doubting their paternity, infringes upon their inherent dignity. Such a request treats individuals as mere subjects of scientific inquiry without due regard for their personal worth and autonomy. The respondent contended that the right to bodily integrity under Article 29 of the Constitution of Kenya is absolute and cited the case of S.W.M V G.M. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18795/eng@2025-12-18 2

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K [2012] KEHC5512 (KLR) where it was held as follows; affirmed "Ordering the Respondents to provide DNA samples for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy, which rights are protected under the Bill of Rights. The petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the Respondent's rights. "The Applicant bears the strict burden of demonstrating compelling justifications, which she has failed to do through mere allegations." 16. I have considered the application, replying affidavit and written submissions and find that the issue for determination whether to allow DNA testing of the objectors children. On one part, the applicant is adamant that a DNA test is imperative to ascertain the paternity of the Objectors children prior to this court making any determination on the objector's claims in respect to the estate of the deceased. On the other part, the respondent contends that the applicant has not laid a basis for an order of DNA testing and that DNA testing in its nature is intrusive and disruptive of a person's bodily autonomy, integrity and security and cannot therefore be granted on a whim. 17. This court has considered the elaborate arguments by the respective parties and finds that the paternity of the objector’s children is integral to ascertain the veracity of her claim to a share of the estate of the deceased and therefore a DNA test is justifiable in the circumstances. It is the view of this court that once paternity is settled, this court will no doubt be in a position to reach a just conclusion on the true beneficiaries of the deceased’s estate. In the case of In re Estate of SKC (Deceased [2019] eKLR the court allowed DNA testing and stated as follows; “The issue in dispute is that of paternity and this can only be determined in the circumstances of this case, if the court takes the approach of the best available way to establish the truth and do justice, over the right to privacy and bodily integrity which ought be respected. This therefore demands that the court employs the best known and most accurate method to arrive at a just decision. The beneficiaries named in the application may suffer some inconvenience and intrusion to their privacy, which has to be weighed against the need for a lasting justice in the matter. Quite obviously the issue of inheritance is at stake. If the results favor the applicant, they stand to benefit, if not, status quo of the estate shall be maintained and these proceedings will automatically end.” 18. In light of the foregoing, it is imperative to have the objector’s children to undergo a sibling DNA test with the daughter of the administrator in order to determine if they share the same father. The notice of motion dated 15th November, 2024 is hereby allowed Costs of the DNA test to be met by the estate of the deceased. DELIVERED, SIGNED AND DATED AT KERICHO THIS 18TH DAY OF DECEMBER, 2025. ..................................... J.K. SERGON JUDGE In the Presence of:C/Assistant – Rutoh Mukundi holding brief for Kipkoech for Respondent Abuya for Administrator/Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18795/eng@2025-12-18 3

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