Ruth Nyambura Chuchu,Zipporah Wangui Chuchu & Florence Njeri Chuchu v Stephen Gathoga Chuchu Alias Stephen Mungai Githu [2014] KECA 335 (KLR)

INTHE COURT  OF APPEAL AT NAIROBI

CORAM: GATEMBU, M’INOTI & MOHAMMED, JJ.A.

CIVIL APPEAL NO. 258 OF 2008

BETWEEN

RUTH  NYAMBURA CHUCHU…………………....…………………….1STAPPELLANT

ZIPPORAH WANGUICHUCHU…………………....………..………2ND  APPELLANT

FLORENCENJERI CHUCHU……………………….………..……..3RD  APPELLANT

V

ANDSTEPHEN GATHOGA CHUCHUALIAS

STEPHEN MUNGAIGITHU……....…..…………..……………………RESPONDENT

(Appeal from the Rulingand   Order of the High Court of  Kenya at Nairobi (Gacheche,J.) dated 8thApril,2008in

H.C.C.C. No. 1379 of2006)

************

JUDGMENT OF THE COURT

This  appeal relates to  the  estate of SolomonChuchu  Watakualias Chuchu   Wataku  Gathiba  (hereafter   deceased),late   of  Githunguri, Kiambu,   who    died    on   9th    March,    2006.  The   three   appellants,  Ruth Nyambura  Chuchu,  Zipporah  WanguiChuchuand   Florence  NjeriChuchuwho  are  the  widows and  joint administrators of the  estate of the deceased, challenge a  ruling of the  High  Court  that ordered the  taking of DNA  samples from  5  sons  of  the   deceased for  purposes of  determining whether the  deceased was  the  respondent’s father. They  contend that the application that was heard by the  High  Court and  which ought to have  been determined, but  was  not, was  a  summons for revocation of grant, not an application for determination of the  respondent’s paternity.

The  deceased left behind a  vast estate estimated at the  time of his death to  be  valued at approximately Kshs 138  million and  was  survived by his  three  appellant widows and  twenty  undisputed  children.  Following his death,   the    appellants,   on   21st    June,   2006,  petitioned   for   Letters  of Administration Intestate of his estate and  were  jointly issued  with a Grant  of Letters of Administration on 25th September, 2006.

What   had   promised  to   be   an   unusually  seamless  succession  and transition in  a polygamous household was  abruptly thrown into  disarray on 27th  November, 2006  when  the  respondent, Stephen Mungai GithualiasStephen Gathoga Chuchu,filed a summons for revocation or annulment of the  grant issued  to  the  appellants. The  grounds upon  which the  summons was  based  were  that the  appellants had  fraudulently concealed to  the  court the  fact that the  respondent was  a son  and  heir  of the  deceased; that the appellants were  advanced in age and therefore unlikely to effectively and diligently administer the  vast estate and that the  respondent was likely to be denied his rightful share  of the  estate of the  deceased.

In   an   affidavit  sworn   on   27th    November,  2006   in   support of  the summons for revocation or  annulment of the  grant, the  respondent further averred that  the  applicants had  failed to  disclose the  full particulars and value of the  estate and  that prior to his death the  deceased had  recognized and  accepted the  respondent as his son.  The summons were  also  supported by   a   subsequent  affidavit  sworn    on   10th    April,    2007    by   one   AbigailNyachombaMugowho    deponed  that   she   was   the    mother  of  the respondent; that she  had  had  a relationship with the  deceased from which the  respondent was  born  on  1st  September, 1960; that the  respondent met and  was  introduced to  the  deceased in  1971; that the  deceased paid  the appellant’s  fees in  primary school, secondary school  and  college; and  that the  respondent had been  assisting the  deceased to run his business empire.

The  applicants resisted the  summons for revocation of grant through an affidavit sworn  on 20th  February, 2007  by  the  1st  appellant, in which they denied that the  respondent was a son or dependant of the  deceased.

Before the  summons for revocation or annulment of the  grant could  be heard and  determined, two  more  applications were  filed in  the  cause.  The first was a summons for confirmation of the  grant, filed by the  appellants on

12th  February, 2007. In  that application, the  appellants averred that it had been  agreed by all the  dependants of the  deceased that his estate should be divided between his  three houses, respectively represented by  the  three appellants. The summons was supported by a consent letter signed by all the twenty children of the  deceased agreeing to and  approving the  proposed distribution of the  estate.

The second application was filed by the  respondent on 7th March,  2008. It  sought an   order  to   compel  three  children  of  the   deceased,  namely Clement Ng’ang’a  Chuchu, Peter  MburuChuchuand  MaryWairimuChuchuand  two  brothers of the  deceased, namely JohnNjoroge Watakuand   Peter  Mburu  Watakuto   provide  DNA   samples  for  purposes  of determining the  respondent’s paternity.  In  the  alternative, the  respondent sought an  order for exhumation of the  remains of the  deceased for DNA testing.

There  is nothing on record to indicate that these  two  applications were ever  heard, withdrawn or otherwise abandoned. When  the  parties appeared before Gacheche,J. on 10th  March,  2008  for hearing, there was no doubt in their minds that the  application before the  learned judge was  the  summons for  revocation  or   annulment  of  the   grant  dated  27th    November, 2006, although the  record erroneously indicates its  date  as 22nd  November, 2006. Mr  Gitau, learned counsel for the  respondent, prosecuted the  application relying on the  affidavit sworn  by the  respondent on 27th  November 2006  and that of his  mother sworn   on  10th   April,   2007. For  his  part, Mr  Njuguna, learned counsel then   appearing for the  appellants,  opposed the  summons contending that there was  no evidence presented to  the  court to  prove that the  respondent was a son or dependant of the  deceased.

On  8th  April,  2008, the  learned judge delivered a ruling in  which she ordered the  respondent to undergo a DNA test to conclusively determine his paternity. To give  effect to  that order, the  learned judge further directed the appellants “to nominatefive  named sons  of  the deceased who  shall offer  samples for   the  said   test.”Those   five  sons   were   to   be  local residents and their names were  to be supplied to the  court within seven  days of the  order.

In  arriving  at  that  order, the   learned  judge  held   that the   issue   of paternity could   not be  conclusively determined  by  affidavit  evidence and that under sections22  and  23  of the Civil  Procedure Act,the  court has power, on  its  own  motion, to  call  a witness to  give  evidence or  to  produce documents.

Aggrieved  by  the   ruling and  order, the   appellants filed  a  notice of appeal on 10th  April,  2008  and  followed it up  with an application before this

Court  for stay of execution of the  order of the  High  Court. On 24 th  October, 2008, this  Court stayed execution of the  order dated 8th  April,  2008  until the hearing and determination of the  appeal now before us.

In  their  memorandum  of  appeal, the   appellants  have   set  out   six grounds of appeal. In our  view,  however, the  issues  of moment raised in the appeal are only  three, namely:

i)        Whether  the  learned trial  judge erredby  making orders that were not sought in the application before her;

ii)        Whether  the  learned  judge  erredby   basing  her decision  on   issues   that  were  not  pleaded  or   argued before her;

iii)       Whether the learned judge erredby  making orders against persons who were not party to the dispute.

With   the   consent of  the   parties,  the   appeal  was  heard  by  way   of written  submissions under  Rule   100   of   the  Court of   Appeal  Rulesfollowed by  oral  highlights. For the  appellants, Mr  Nduati,learned counsel, submitted that the  application that was  heard by  the  learned judge was  the summons for revocation or annulment of grant dated 27th  November, 2006, but  in  her  ruling, the  learned judge ignored the  issues  that were  raised in that  application  and   canvassed  before  her   and   instead  made    orders regarding  the   respondent’s  paternity  and   DNA   testing.  The   real   issue canvassed before  the  learned judge, namely the  revocation of the  grant, counsel contended, was left in limbo. In counsel’s view  the  appellants as well as the  children of the  deceased were  denied an opportunity to  be heard on the  issue  of DNA  testing before the  court made   its  order. It was  learned counsel’s further contention that adverse orders were  issued  against third parties, namely the   intended  donors of the   DNA  samples, who  were   not parties to  the  proceedings and  who  were  not afforded an  opportunity to  be heard.

The  order  of  the   High   Court  was  also  impugned  on  the   additional grounds that it lacked precision and  was unenforceable in the  event that the nominated  sons  of the   deceased declined  to  submit  themselves to  DNA testing. It  was   further  contended  that  sections 22   and   23   of  the   Civil Procedure Act which was invoked by the  learned judge to order DNA testing, had  no  application to  succession causes,  being not one  of the  provisions of that Act applied to succession causes  by  Rule  63  of the Probate & Administration Rules.

Learned counsel concluded  by  citing the  judgments of this  Court  inGALAXY PAINTS CO LTD VS FALCON GUARDS LTD(CA  No. 219   of1998)and  OLE NGANAI VS ARAP BOR (CANo 33  of 1981)respectively for  the  propositions that  a  court can  only   pronounce itself  on  the  issues before it, and that it will  not grant an order that has not been  prayed for.

Mr  Gitau, learned counsel for the  respondent opposed the  appeal and supported the  order of the  High  Court. In his  view,  the  issue  of DNA testing had  been  raised in  the  pleadings and  was  therefore a lingering issue  which the  learned judge could  validly determine.  Counsel  submitted further that under sections 22 and  23 of the  Civil  Procedure Act,  the  court had  power, on its  own  motion, to call  a witness to give  or produce evidence and  that under Rule  73  of the Probate and  Administration Rulesthe  court has inherent powers to make  the  orders it deems necessary for the  ends of justice.

On whether orders were  made  against persons who  were  not parties to the  proceedings and  who  had  not been  afforded an opportunity to be heard,counsel submitted that the  parties affected by  the  orders made  by  the  High Court  were  not strangers because they were  beneficiaries of the  estate of the  deceased. And on enforceability of the  order, learned counsel saw no impediment, since  all the  sons  of the  deceased were  known and  it would be very   easy   to  pick   any   five  of them.  In  any   event,  counsel added,  DNA sampling and  testing as provided in  section 122A(2)of  the Penal  Codewas  a simple test whose  minor inconvenience should not override the  right of the  respondent to know  the  identity of his parent.

Mr Gitau  concluded his submissions by contending that the  order of 8th April,    2008    was   a   mere    preliminary   order  pending  the    hearing  and determination of the  summons for revocation of grant and that after the  DNA testing, further proceedings would take place.

The decisions of the  High  Court in  MARY WAMBOI VS KIARIE CHEGE HC Misc App No 105  of 2004 (Kakamega)and  IN THE MATTER OF THEESTTAE OF GEORGE MUSAU MATHEKAHCCC  No  470   of  1990were relied upon  to submit, respectively, that there is no inhibition to the  power of the  court to order DNA testing, or to determine issues  of disputed paternity.

It is common ground that the  hearing that took  place  on  10th  March, 2008   was   in   respect  of  the   respondent’s  application  for  revocation  or annulment of grant dated 27th  November, 2006. In his  written submissions, Mr Gitau  candidly conceded that at the  date  of the  hearing of the  summons for revocation or annulment of the  grant, the  respondent’s application dated 7th  March,  2008  for DNA testing did  not have  a hearing date. By electing to proceed with the  application for revocation or annulment of grant before the

application for DNA testing was  heard and  determined, the  respondent was in  essence   setting out   to  prove  the   grounds for  revocation  of the   grant without the  aid of the  DNA evidence.

As the  application for DNA testing was  not before the  trial judge, it is not surprising that  none   of the   parties  really  addressed any  of the   DNA issues  that arise  from that application, such  as the  desirability of the  DNA testing; whether DNA testing was necessarily the  only  method of proving the respondent’s dependency on  the  deceased; the  willingness or  otherwise of the  persons named  in  that application to  submit to  the  DNA  testing; the viability of the  alternative prayer for exhumation of the  remains of the deceased; whether  the   DNA  testing, if  ultimately  ordered, would involve primary samples or would be restricted to  sibling testing; among other such issues.

With   respect, the   learned judge erred in  making the  order on  DNA testing  while the   issue  was  not before her.   Ex concessis,   that issue  was pending for determination in  the  separate and  distinct application dated 7th March,    2008.  By   proceeding  as   she   did,   the   learned  judge  in   effect determined issues  in an application that was not before her  and  without the parties being afforded an opportunity to be heard on those  issues.

The  general rule   still remains that  parties are  not allowed to  raise issues    other  than    those    that  they  had    submitted   to   the    court  for determination. In  GANDY VS CASPAIR (1956)23  EACA 139, SinclairV-Pstated that no relief will  be given unless  it is founded on the  pleading. And in BHARI VS KHAN(1965) EA 94,at P. 105, NewboldAg  V-Pstated as follows:

“Ifa judge were free to determine issues  not before him, then  it  would result in  the  injustice of  condemning a party upon   a  ground  of  which   no  fair   notice had  been given.”

It is however accepted that where the  parties have  raised an issue  and left it for the  decision of the  court, it is  within the  power of the  court to determine the  issue  even  though it was  not pleaded. So in  ODD JOBS VS

MUBIA (1970)EA 476,the  predecessor of this  court held  that:

“A courtmay  base  its decision on an unpleaded issue  if it appears from   the course   followed at  the trial that the issue  has been  left to the court for decision.”

As we have  already observed, in the  appeal before us the  issue  of DNA testing was  raised  in  a  separate and  distinct  application which was  still pending for hearing. During the  hearing of the  application for revocation or annulment of grant, the  issues  of DNA testing were  not addressed. We find that on  the  facts of this  appeal, the  issue  of DNA testing was  not raised by the   parties  and   left  to   the   Court   to   decide  within  the   application  for revocation or annulment of the  grant.

Another fundamental problem with the  order of 8th  April,  2008  relates to the  right of the  affected parties to be heard before the  order was made. In the  respondent’s application for DNA testing, the  samples were  sought from five specified persons, namely:

i)           Clement Ng’ang’a Chuchu,son of the deceased;

ii)         Peter Mburu Chuchu,son of the deceased;

iii)        Mary Wairimu Chuchu, daughterof the deceased;iv) John Njoroge Wataku, brotherof the deceased; andv)         Peter Mburu Chuchu, brotherof the deceased.

In  the  order that the  trial judge made, the  DNA  samples were  to  be provided  by   “five  namedsons   of   the  deceased who   shall   offersamplesfor   the said   test.”It is  not  clear   where  the   five sons  were “named”for no names were  given in the  ruling. Clearly the  persons that the learned judge had  in  mind  cannot possibly be  the   persons  in  respect of whom the  applicant had  sought DNA samples because not all of the  persons specified by  the   respondent  were   “sons”  of the   deceased.  There   was  a daughter and  two  brothers of the  deceased among the  five persons named by  the  respondent. Even  assuming that the  learned judge had  in  mind the pending application for DNA testing, which in the  circumstances of the  case before her  she  ought not, she  ended up  making an  order against persons other  than    the   particular   persons  against  whom  the   respondent  had specifically sought the  order.

We are  therefore not satisfied in the  circumstances of this  appeal that it can  be  asserted,  as  the   respondent’s  counsel  does,   that the   persons against whom the  order was  made  had  an  opportunity to  be  heard on  the issue  of DNA testing simply because they are beneficiaries of the  estate. The right  to   be  heard  is  real,   not  assumed. In  addition,  granted  the   rather personal and,  depending on the  DNA collection procedure adopted, invasive or  intimate  nature  of  the   procedure, it  was   necessary that,  unless   the persons against whom the  order was  made  voluntarily agreed to  submit to the  procedure, they be afforded a real  opportunity to be heard.

In  MUTISO VS MUTISO(1984) KLR 536, this  Court Stated that:

“Itis  a  fundamental  principle of  justice that  before an order or decision is made, the parties and  particularly the party against whom  the decision is to be made should  be heard.”

(See also  MATIBA VS ATTORNEY GENERAL (1995-1998)1 EA 192

There  is still the  vexed question of the  uncertainty of the  order issued on  8th  April,  2008. From  the  record, the  deceased has  ten  sons.  Instead of specifying  which  five  of  those   ten   sons  would  have   to  submit  the   DNA samples, the  court left it to  the  applicants to  “nominate”five sons  to  give the  samples. The natural question that arises  is how  the  court order was  to be enforced against any  of the  “nominated” sons if for any  reason they were unwilling to  submit themselves to  DNA  testing, having not been  parties to the  application and having not been  afforded an opportunity to be heard?

It has  been  asserted time and  again  that a court should avoid  making orders in vain  or orders that are ineffectual, in the  sense  that they cannot be enforced at all,  or  at any  rate  without undue supervision by  the  court.   InERIC V.J. MAKOKHA & 4 OTHERS VS LAWRENCE SAGINI & 2 OTHERS,CA No. NAI 20  of 1994, a bench  of five judges of this  Court stated, in the context of applications for injunctions, that a court should not stultify itself by  making orders which cannot be  enforced or  which are  ineffective for all practical purposes, and  that the  court ought not to  grant orders that will  be impossible to  comply with. The principle, in our  opinion, is valid even  in the context  of  this   appeal.  (See   also   HITENKUMAR AMRITLAL VS CITY

COUNCIL OF NAIROBI,CA No 47  of 1981).

The appellants have  satisfied us that the  order of the  High  Court dated 8th April,  2008  cannot be allowed to stand on the  grounds that it is based  on issues  that were  not before the  court, the  persons who  were  likely to  be directly affected by  it were  not afforded an opportunity to  be heard and  the order in and  of itself is too  uncertain to  be capable of enforcement. On that basis,  we do not consider it necessary to  address the  other issues  raised by learned counsel on both  sides of the  dispute.

Accordingly, we  allow  this  appeal and  set aside  the  judgment of the High  Court  dated 8th  April  2008. We also  award the  costs  of the  appeal and those  of the  application before the  High  Court to the  appellants.

Datedand  delivered at Nairobi this 10thday  of October, 2014

S GATEMBU KAIRU

----------------------------------JUDGE OF APPEAL

K.M’INOTI

----------------------------------JUDGE OF APPEAL

J. MOHAMMED

---------------------------------JUDGE OF APPEAL

I certify that this  is a true copy  of the  original.

DEPUTY REGISTRAR

jkc