Lucy Wanjiku Kinuthia v Nancy Wairimu Kamau & 1 other

4. The Applicant particularizes what she describes as mismanagement on the part of the administrators. She avers that they have prepared and filed proposed modes of distribution without consulting other beneficiaries and, more gravely, have excluded certain beneficiaries altogether. In particular, she alleges that the administrators have disowned and effectively disinherited the widow and children of their late brother, Cephas Ng’ang’a Kamau, on the basis that they are not members of the family. The Applicant contends that such exclusion is unjustified and calculated to defeat the legitimate claims of the dependants. 5. The Applicant also alleges financial impropriety and accuses the administrators of colluding to defraud the Estate by inflating an outstanding hospital bill allegedly owed to Mater Hospital in respect of their late mother. According to her, the actual hospital bill stood at approximately Kshs.1,400,000 or less, yet the Administrators have represented it as Kshs.8,000,000, thereby creating a discrepancy of Kshs.6,600,000. She contends that this inflation is deliberate and intended to prejudice the Estate. 6. In addition, the Applicant challenges the proposed mode of distribution on the ground that it is inequitable. She states that the administrators have proposed that certain properties be held in trust for the families of their Deceased brothers, notwithstanding that the respective widows and children are adults who are capable of holding property in their own right. In her view, such an arrangement is unnecessary and serves only to consolidate control of the Estate in the hands of the current Administrators. 7. The Applicant avers that several beneficiaries support her appointment as Co-administrator, believing that her inclusion would safeguard their interests and promote fairness in the administration and eventual distribution of the Estate. She therefore urges the Court to exercise its discretion in her favour. 8. Concurrently with the said Summons, Lucy Wanjiku Kinuthia filed an affidavit protesting the confirmation of grant. In that affidavit, she reiterates the foregoing concerns and further depones that their late brother, Cephas Ng’ang’a Kamau, whose entitlement is allegedly being disregarded in the proposed distribution, was lawfully married to one Selina Wangari Ng’ang’a. She avers that the two cohabited as husband and wife at their late father’s home in Kanjeru. 9. She further states that the said union was blessed with a son, SKN. Additionally, she asserts that Cephas Ng’ang’a Kamau had adopted Nelly Njeri Ng’ang’a as his own child, notwithstanding that she had been born to Selina prior to her marriage to Cephas. According to the Applicant, Selina and the children continue to reside at their late father’s home, and she herself has been assisting in their upkeep. 10. The Applicant also deposes that the Magistrate’s Court at Kikuyu issued letters of administration ad litem in respect of the Estate of Cephas Ng’ang’a Kamau to herself and to Selina Wangari Ng’ang’a, thereby recognizing the need to represent his Estate in these proceedings. On the basis of the foregoing, she maintains that the exclusion of Selina and her children from the distribution of the Estate of the Deceased herein is unjust and contrary to the principles governing succession. 11. In opposition to the Summons dated 19th October, 2022, the Administrators Nancy Wairimu Kamau and Lilian Wangari Kamau, swore a joint Replying Affidavit on the 26th July, 2023.They confirm that the Applicant is their sibling and a daughter of the Deceased. However, they contend that the Applicant freely and voluntarily executed the consent to the Summons for Confirmation of Grant and did not raise any objection at the time of signing. In their view, the present challenge is an afterthought calculated to delay and frustrate succession proceedings that have been pending since 2008. 12. The Administrators deny the allegation that they have acted with hostility towards any beneficiaries. In particular, they dispute the claim that one Selina Wangari was a lawful wife of their late brother, Cephas Ng’ang’a Kamau (Deceased). They state that Nelly Njeri Ng’ang’a is a stranger to them and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 2

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that no documentary evidence has been presented before the Court to demonstrate the existence of a marriage recognized under Kenyan law. They further aver that no adoption orders or other proof have been tendered to establish that the children, Nelly Njeri Ng’ang’a and SKN, qualify as dependants or beneficiaries of the Estate by virtue of any lawful relationship. 13. The Administrators also allege that the identification card belonging to Nelly Njeri Ng’ang’a was fraudulently procured through the Applicant in an attempt to introduce strangers into the Estate for personal gain. They depose that they have filed an application seeking orders for a DNA test to determine the paternity of the minor, Samuel Ng’ang’a, so as to establish whether he is indeed a biological child of the late Cephas Ng’ang’a Kamau. That application, they state, remains pending before the Court. 14. They further deny any acts of hostility or intention to disinherit legitimate beneficiaries, asserting that their actions are guided by a duty to safeguard the Estate from intermeddlers and from persons seeking to benefit without lawful entitlement. In that regard, they maintain that the burden rests upon the Applicant to prove the alleged marriage between the late Cephas Nganga Kamau and Nelly Njeri Ng’ang’a and the adoption of Nelly Njeri Nganga to demonstrate their legal status of the persons she seeks to introduce as beneficiaries. 15. With respect to the issue of offsetting the hospital bill, the Administrators depose that the matter was settled by consent. They state that; By a consent dated 9th March, 2023, the parties agreed to authorize the sale of Plot No. 531 Eastleigh Section 1, with the proceeds to be deposited into a joint account in the names of the advocates on record. The said consent was subsequently adopted as an order of the Court on 24th July, 2023. They add that the Applicant is a signatory to the joint account and that the issue has therefore been fully dispensed with. 16. The Administrators also reject the allegation that beneficiaries have lost confidence in them, asserting that they have acted diligently and in good faith in administering the Estate. They maintain that they are open to including any rightful beneficiaries upon proper verification of their entitlement. In conclusion, the Administrators urge the Court to dismiss the Applicant’s application, which they characterize as malicious, frivolous, vexatious, and devoid of merit, and to uphold the integrity of the succession process. The Second application 17. The second application is the Notice of Motion dated 29th November, 2022 and filed by the Administrators, Nancy Wairimu Kamau and Lilian Wangari Kamau and brought under Sections 1A and 3A of the Civil Procedure Act, Order 51 and Order 32 Rules 3 and 4 of the Civil Procedure Rules, and all other enabling provisions of the law. In that application, the Administrators seek the following orders: a. The 2nd Respondent be appointed and joined in this suit as guardian ad litem of the minor. b. The 2nd Respondent be ordered to submit the minor to a Deoxyribonucleic Acid (DNA) test through matching of samples to be taken from the Minor's body and the Administrators/ Applicants' bodies in order to establish paternity or non-paternity. c. That the Deoxyribonucleic Acid (DNA) test be done at Lancet Hospital or Kenyatta National Hospital or any other body that the Court may deem fit at a date to be set, in any event within 10 days of issuance of the order. d. Costs of the DNA and the Application be in the Cause. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 3

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18. The application is premised on the fact that in the Affidavit of Protest sworn on 17th August, 2022 and in the Summons dated 19th October, 2022, it was alleged that the minor is a biological child of the late Cephas Ng’ang’a Kamau. In their Supporting Affidavit, the Administrators depose that the family of the Deceased had no prior knowledge of any marriage between Cephas Ng’ang’a Kamau and Selina Wangari and that they are strangers to the assertion that such a union bore a child. 19. They further raise concerns regarding the minor’s birth certificate, which they state was issued on 22nd October, 2021, approximately eleven years after the death of Cephas Ng’ang’a Kamau, and contend that this circumstance casts doubt on the claim of paternity. The Administrators maintain that the question on whether the minor is indeed a biological child of the Deceased, and therefore a beneficiary of the Estate, can only be conclusively determined through a DNA test. 20. The Administrators depose that they are willing to submit themselves for purposes of providing samples for comparison with that of the minor. They aver that no loss or prejudice will be occasioned to the Respondents or to the minor if the orders sought are granted, and that a DNA test would serve the best interests of the minor by ensuring that he is neither wrongfully excluded from nor improperly included in the Estate. 21. They further state that the grant of the orders sought would obviate the need for a more drastic step, such as the exhumation of the remains of the late Cephas Ng’ang’a Kamau for purposes of conducting a paternity test, although they express readiness to abide by such an order should the Court deem it necessary. 22. In response to the application dated 29th November, 2022, Selina Wangari swore a Replying Affidavit on 3rd July, 2025 opposing the prayer for a DNA test. She deposes that she is the widow of the late Cephas Ng’ang’a Kamau, who died in 2011, and that she is a joint administrator of his Estate together with the 1st Objector. She annexed copies of a Limited Grant and the death certificate of her late husband in support of that position. She further avers that the Administrators herein, as well as the 1st Respondent, are sisters to her late husband and were at all times aware of her marriage to him. 23. Selina states that she began cohabiting with the Deceased in 2008 and that their union was formalized in December 2009 when members of his family visited her home in Elburgon, Molo, for introductions. She annexed sworn statements to demonstrate that some members of the family participated in that ceremony. She further deposes that thereafter she resided with her husband at his family home, being the home of the Deceased in this cause, and that she continues to reside there to date. She annexed a letter from the area chief in support of her residence. 24. She explains that at the time of her marriage to Cephas Ng’ang’a Kamau, she had one daughter from a previous relationship, whom her husband took in and treated as his own child. She further avers that during the subsistence of her marriage she and her husband were blessed with a son, SKN, who was born in 2010 and named after his paternal grandfather, the Deceased herein. She annexed a copy of the minor’s birth certificate and emphasizes that the child was born during her husband’s lifetime, prior to his death in 2011. 25. With regard to the timing of the issuance of the Birth Certificate in 2021, she contends that there is nothing irregular or suspicious about obtaining the document after the death of her husband, as there is no statutory time limit within which a birth certificate must be processed. She further asserts that the Applicants have not produced any evidence demonstrating any defect in the said birth certificate to justify questioning its authenticity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 4

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26. Selina characterizes the application for DNA testing as frivolous, vexatious and premature. She contends that it is an abuse of the court process and amounts to an attempt by the Applicants to compel the Court to assist them in gathering evidence to support their own case. She further avers that subjecting the minor to a DNA test without compelling grounds would infringe upon the child’s constitutional right to privacy. 27. She accuses the Applicants of seeking to disinherit the children of their late brother in order to deny them their rightful share in the Estate of their grandfather. She further alleges that the Applicants have historically opposed to her marriage to their brother and have attempted to evict her from the Deceased’s home, and that only the intervention of the 1st Respondent prevented her and her children from being rendered destitute. 28. In conclusion, she maintains that she and her children, as beneficiaries of the Estate of the late Cephas Ng’ang’a Kamau, are entitled to benefit from the Estate of the Deceased herein and urges the Court to dismiss the application for DNA testing with costs. Submissions 29. The court directed that the two applications be canvassed by way of written submissions and the same were filed by the parties respectively. The Court has read and carefully considered the submissions filed by both parties and summarized the same as follows. 30. In support of their Notice of Motion dated 29th November, 2022, the Administrators submit firstly, that the issue of the minor’s paternity arose only after the 1st Respondent filed her Affidavit of Protest and Summons seeking to be appointed as a Co-administrator and alleging that the minor is a biological child of the late Cephas Ng’ang’a Kamau. They contend that they are strangers to the alleged marriage between the 2nd Respondent and their late brother and that no credible evidence has been placed before the Court to prove either the existence of a lawful marriage or the paternity of the minor. In that regard, they urge that the 2nd Respondent, being the mother of the minor and an adult of sound mind with no adverse interest, be formally appointed as Guardian Ad Litem pursuant to Order 32 Rules 3 and 4 of the Civil Procedure Rules so as to safeguard the minor’s best interests. 31. On the prayer for DNA testing, the Administrators submit that the authenticity and evidential value of the minor’s birth certificate is questionable, having been obtained eleven years after the death of the alleged father. They argue that no proof has been tendered to demonstrate that the Deceased consented to the use of his name in the birth certificate as contemplated under Section 12 of the Births and Deaths Registration Act. Citing various decisions of the High Court, they submit that where paternity is seriously disputed and doubts exist, a DNA test is the most reliable and conclusive method of resolving the question, and that such testing would be in the best interests of the child and the Estate to ensure equitable distribution. 32. In opposition to the Summons dated 19th October, 2022 seeking the appointment of Lucy Wanjiku Kinuthia as a Co-administrator, the Administrators submit that the Applicant freely executed the consent to confirmation of grant and has not adduced any evidence of coercion, fraud or undue influence capable of vitiating that consent. They rely on Section 107 of the Evidence Act and judicial authorities to argue that mere allegations of impropriety, without proof, cannot invalidate duly executed succession documents. They contend that the Applicant’s attempt to resile from her consent is an afterthought. 33. The Administrators further deny allegations of fraud and mismanagement, particularly with regard to the alleged inflation of hospital bills. They submit that the issue of settlement of the hospital bill was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 5

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resolved through a consent recorded in Court authorizing the sale of a specified property and deposit of proceeds into a joint advocates’ account, to which the Applicant herself is a signatory. They emphasize that allegations of fraud must be strictly pleaded and proved, and that no cogent evidence has been tendered to support the serious accusations made against them. 34. Finally, the Administrators submit that the Applicant has not demonstrated sufficient grounds under Section 66 of the Law of Succession Act to warrant her appointment as a Co-administrator, nor has she proved that Selina Wangari and her children qualify as beneficiaries under Section 29 of the Act. They argue that uncertified documents such as the chief’s letter and birth certificate cannot conclusively establish paternity or dependency, and that the burden of proof lies with the party asserting such status. They therefore urge the Court to allow the application for DNA testing, dismiss the Summons for joinder as Co-administrator, and permit the administration of the Estate to proceed without further delay. 35. In their submissions dated1st August, 2025, Lucy Wanjiku Kinuthia and Selina Wangari Nganga oppose the Notice of Motion dated 29th November, 2022 and urge the Court to dismiss it in its entirety. On the prayer seeking the appointment of the 2nd Respondent as Guardian Ad Litem of the minor, they submit that the same has been overtaken by events. They point out that a Limited Grant Ad Litem in respect of the Estate of the late Cephas Ng’ang’a Kamau was issued on 21st November 2022 jointly to the 1st and 2nd Respondents. In their view, the 2nd Respondent is already properly before the Court in a representative capacity, rendering the prayer superfluous. 36. With regard to the prayer for DNA testing, the Respondents submit that the application is fatally defective for vagueness, as it does not specifically identify the minor to be subjected to the test. They argue that court orders must be precise and unequivocal, and that the speculative nature of the prayer renders it unenforceable. Without prejudice to that objection, they maintain that there is uncontroverted evidence of the marriage between the 2nd Respondent and the late Cephas Ng’ang’a Kamau, including evidence of customary rites and cohabitation at the Deceased’s homestead. They further submit that the minor, SKN, was born during the lifetime of Cephas and that a birth certificate and a chief’s letter confirming their status as beneficiaries have been produced. According to the Respondents, the mere fact that the birth certificate was processed after the death of Cephas does not invalidate it, as there is no statutory timeline governing such registration. 37. The Respondents contend that the Applicants have not laid any factual or evidential foundation to warrant the intrusive order sought. They argue that compelling a minor to undergo DNA testing would infringe the constitutional right to privacy under Article 31 of the Constitution and violate the right to bodily integrity. Reliance is placed on judicial authorities in succession matters where courts have declined to order compulsory DNA testing in the absence of exceptional circumstances, as well as on the Data Protection Act, which safeguards genetic data and requires consent. They further argue that the application improperly invites the Court to assist the Applicants in gathering evidence, thereby compromising judicial neutrality. 38. Additionally, the Respondents submit that matching the minor’s DNA with that of the Administrators would itself be prejudicial and inconclusive, as sibling relationships do not automatically establish biological nexus without independent proof. They emphasize that under Section 3 of the Law of Succession Act, a “child” includes one expressly recognized or accepted by a Deceased male as his own. In their view, the evidence demonstrates that Cephas not only sired SKN but also accepted and assumed responsibility for the 2nd Respondent’s firstborn child. Consequently, they maintain that the children are rightful beneficiaries entitled to inherit their father’s share in the Estate of their grandfather. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 6

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39. In conclusion, the Respondents submit that the application lacks merit, is unsupported by evidence, infringes constitutional rights, and amounts to an abuse of the court process. They urge the Court to dismiss it with costs. Analysis and Determination 40. Having considered the pleadings, affidavits and rival submissions, the Court is of the view that two issues fall for determination: a. Whether Lucy Wanjiku Kinuthia should be appointed as a Co-administrator of the Estate of Samuel Kamau Nganga (Deceased). b. Whether the minor, SKN, should be subjected to a Deoxyribonucleic Acid (DNA) test to establish paternity. (a) Whether Lucy Wanjiku Kinuthia should be appointed as a Co-administrator 41. The jurisdiction of this Court to appoint administrators is anchored on the provision under Section 66 of the Law of Succession Act, which grants the Court final discretion as to the person or persons to whom a grant of representation shall issue, guided by the best interests of all concerned beneficiaries. The guiding consideration is not personal preference of the proposed administrator, but whether the proposed Administrator will advance the due and fair administration of the Estate. 42. In this case, the central grievance raised by the Applicant is not merely a personal dispute with her sisters who are now the Co-administrators of the Estate, but the alleged exclusion of the Estate of the late Cephas Ng’ang’a Kamau from the proposed distribution as well as the incorporation on mode of distribution by the sisters. It is not disputed that Cephas Ng’ang’a Kamau was a son of the Deceased herein and, had he been alive, would unquestionably have been entitled to a share of his father’s Estate pursuant to Sections 35, 38 and 41 of the Law of Succession Act. Upon his death, that entitlement did not evaporate; it devolved to his Estate. 43. The material placed before this Court shows that Lucy Wanjiku Kinuthia together with Selina Wangari Nganga were appointed as Administrators of the Estate of Cephas Ng’ang’a Kamau in Kikuyu Magistrates Court Misc. Succession Cause No. E078 of 2022. In that capacity, Lucy Wanjiku Kinuthia bears a fiduciary duty to safeguard the interests of that Estate wherever they arise. Where a beneficiary of an Estate has since died, it is proper that his or her personal representative be involved in the succession proceedings of the parent Estate so as to protect the derivative entitlement. 44. In the present matter, the record reveals no cogent justification for the omission of the Estate of Cephas Ng’ang’a Kamau from the schedule of distribution. The administrators have focused their opposition largely on disputing the status of Selina Wangari and her children. However, the more fundamental question is whether the Estate of Cephas Ng’ang’a Kamau, as a unit, is entitled to a share and that question appears to have received little attention in the proposed mode of distribution. 45. In this Court view, the circumstances of this case disclose sufficient cause to warrant the appointment of an additional administrator since the dispute surrounding the entitlement of the Estate of Cephas Ng’ang’a Kamau is substantial and cannot be dismissed as frivolous. The inclusion of Lucy Wanjiku Kinuthia, who is already clothed with authority to represent that Estate, will promote transparency, forestall further contestation, and ensure that all interests are adequately defended. 46. Accordingly, this Court finds this to be a proper case for the exercise of discretion under Section 66 of the Law of Succession Act hence the application dated 19th October, 2022 is hereby allowed, and Lucy https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 7

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Wanjiku Kinuthia shall be appointed as a Co-administrator of the Estate of Samuel Kamau Nganga (Deceased). (b) Whether the minor, SKN, should be subjected to a DNA test 47. The second issue concerns the prayer that the minor, SKN, be compelled to undergo DNA testing. The law on compulsory DNA testing is now settled and Courts have consistently held that such orders implicate the constitutional rights to privacy and bodily integrity under Article 31 of the Constitution. 48. For instance, in the case of S.W.M. –vs- G.M.K [2012] eKLR, the Court held that ordering a party to provide DNA samples constitutes an intrusion upon bodily security and privacy, and that the burden rests upon the Applicant to demonstrate that such intrusion is justified. Similarly, in the case of D.N.M –vs- J.K [2016] eKLR, the Court observed that compulsory DNA testing of non-consenting persons may only be ordered in exceptional circumstances, where there is a clear nexus and a compelling need to vindicate specific rights. 49. Further, under Sections 25 and 26 of the Data Protection Act, No. 24 of 2019, genetic data is categorized as sensitive personal data, the processing of which requires informed consent. The Court must therefore tread cautiously before authorizing compulsory extraction of such data. 50. However, beyond the constitutional and statutory considerations, this Court must interrogate the underlying relevance of the proposed DNA test. It is worth noting that the minor in question does not claim directly against the Estate of Samuel Kamau Nganga in his personal capacity. Any entitlement he may have can only arise through the Estate of his alleged father, Cephas Ng’ang’a Kamau. In other words, the operative question in these proceedings is not whether SKN is a beneficiary of Samuel Kamau Nganga (Deceased), but whether the Estate of Cephas Ng’ang’a Kamau is entitled to a share of the parent Estate. 51. Once it is acknowledged that Cephas Ng’ang’a Kamau was a son of the Deceased herein, his Estate is prima facie entitled to representation and to its corresponding share, subject to the law. The internal distribution of that share among the dependants or beneficiaries of Cephas is a matter to be addressed within the succession proceedings relating to his Estate. 52. Significantly, none of the current administrators has advanced any lawful basis for excluding the Estate of Cephas Ng’ang’a Kamau from the schedule of distribution hence in the absence of such justification, the focus on DNA testing appears misplaced. To compel a minor to undergo an invasive procedure, in circumstances where the primary legal issue can be resolved without such intrusion, would be disproportionate. 53. Therefore, this Court is not persuaded that exceptional circumstances have been demonstrated so as to override the minor’s constitutional protections. The court is thus persuaded that the proposed DNA test is neither necessary nor proportionate to the determination of the issues presently before this Court. 54. Accordingly, the Notice of Motion dated 29th November, 2022, insofar as it seeks orders for DNA testing of the minor SKN, is hereby dismissed. Disposition 55. In the resultant:a. The Summons dated 19th October, 2022 is allowed and Lucy Wanjiku Kinuthia is hereby appointed as a Co-administrator of the Estate of Samuel Kamau Nganga (Deceased). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 8

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b. Conversely, the Notice of Motion dated 29th November, 2022 seeking orders for DNA testing of the minor, SKN is hereby dismissed. c. The Estate of Cephas Ng’ang’a Kamau shall be included in the schedule of distribution, subject to lawful administration of his Estate; and, d. Each party shall bear their own costs. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 13TH DAY OF FEBRUARY, 2026. D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4183/eng@2026-02-13 9

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