In re Estate of RMM (Deceased) [2022] KEHC 13289 (KLR)

In re Estate of RMM (Deceased) (Succession Cause 929 of 2017) [2022] KEHC 13289 (KLR) (Family) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13289 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 929 of 2017

AO Muchelule, J

October 3, 2022

IN THE MATTER OF THE ESTATE OF RMM (DECEASED)

MWM………..………..………APPLICANT

VERSUS

JWM……………………….RESPONDENT

Ruling

1. The deceased RMM died intestate on July 22, 2015 at the Nairobi Hospital. He was survived by a widow JWM (the respondent) who petitioned this court and obtained a grant on November 1, 2017. The grant has not been confirmed. Her children with the deceased were AMM and DKM. There is an application dated June 11, 2018 seeking the confirmation of the grant.

2. Even before that, the deceased’s brother JMM had filed an application dated December 22, 2017 seeking the revocation of the grant. One of the grounds was that the respondent had in the petition listed properties that belonged to the deceased’s father and mother which were the subject of HC No. 3607 of 2004 at Nairobi and Succession No. 97 of 2017 at Kiambu, respectively. The other ground was that the deceased had other children, MWM (the applicant) and GNM, who had been omitted from the list of beneficiaries. The application was opposed by the respondent.

3. The instant application is dated June 9, 2021 by the applicant. It is under sections 26 and 76 of the Law of Succession Act (Cap. 160) for him to be recognised as child and beneficiary of the deceased and for the grant to the respondent be revoked and a joint grant between him and the respondent be issued. His case was that the deceased had him and GNM as his other children whom the respondent had not indicated, both in the petition and in the application for confirmation. He produced his birth certificate that showed the deceased to be the father. He offered to have DNA testing done to prove that he was the deceased’s son. He indicated that the deceased had been supporting and educating him before his death.

4. The respondent denied that she was guilty of concealing the existence of the deceased’s other children. Her case was that the said children were not known to her. She made reference to what JMM had stated in his affidavit: that the two were children of the deceased. Her case was that the said JMM had participated in the funeral arraignments of the deceased and their late mother MKM, and that in neither of them did he indicate that the applicant and her sister were children of the deceased.

5. I consider the submissions that were filed in relation to the application. I note that there is a pending application to revoke the grant and that there is an application to confirm the grant. So that there is a comprehensive and substantive attention to all the disputes relating to the petition, I adjourn this application and direct that is shall be heard orally together with the other two applications. In the meantime, I order that the respondent, her children, JMM, the applicant and GNM do each provide tissue and material to help the government chemist to conduct DNA testing to determine whether the deceased was the father of the applicant and GNM. This should be done within 45 days from today. The government chemist will file the report into court.

6. This matter shall be mentioned on November 21, 2022 for further directions.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 3RD DAY OF OCTOBER 2022. A.O. MUCHELULEJUDGE