1. The 1st and 2nd Objectors/Applicants allege that they are the children of the deceased person, Bernard Alfred Aguko. They filed a summons for revocation of the grant dated 20th June 2024, seeking to have the grant issued by this Court to Everlyne Nyaboke Aguko on 31st October 2023 revoked and or annulled on the grounds that the petitioner did not disclose that the deceased had 2 other dependants.
2. The summons was heard by this Court on viva voce evidence. The hearing concluded on 21st October 2025. As the Court was about to give directions on the filing of written submissions, Ms Makau, learned counsel for the applicants, sought directions on whether the applicants should undergo a DNA test. The Court directed her to file an application seeking a DNA test. Pursuant to that leave, the applicants' counsel filed the notice of motion application dated 1st December 2025. The application seeks to have Felix Gordon Odhiambo, Vincent Gift Otieno and the sister of the deceased, Caroline Anyango Juma, undergo a DNA test at KEMRI to determine the paternity of the applicants herein in relation to the deceased. The applicants also prayed that the DNA results be forwarded to the Court and admitted as evidence.
3. The application was opposed by Ms Everlyne Nyaboke Aguko. She filed a replying affidavit sworn on 15th December 2025, vide which she deposed that the DNA test was unnecessary and intrusive. She further stated that no basis had been laid for such a drastic action, as no evidence was laid to show that the applicants were the dependants of the deceased or that they were recognized, acknowledged, maintained, or associated with him during his lifetime.
4. She averred that there was no evidence that the deceased and Ms Caroline Anyango Juma were siblings and that any DNA result obtained would at test be inconclusive. She stated that the DNA test ought to have been conducted during the deceased's lifetime or immediately prior to his burial. She saw in the application a ploy by the objectors/applicants to delay the conclusion of the matter.
5. The application was canvassed by way of written submissions. The submissions of the applicants’ counsel are dated 18th December 2025. Ms Makau urged that the only issue before the Court was whether the application had merit and if it should be allowed. It was urged on reliance on the decision of the Court in Wilfred Koinange Gathiomi v Joyce Wambui Mutura & another [2016] KEHC 7005 (KLR, that where there isn’t sufficient proof (of paternity), a scientific method, like DNA profiling, would be useful. Reliance was also placed on this Court’s decision in the case of In re Estate of SMG (Deceased) [2024] KEHC 1536 (KLR).
6. Counsel contended that the application was not an afterthought, as the applicants had always expressed a desire to apply for a DNA test. Regarding the birth certificates she submitted, these were secondary documents whose contents were rebuttable. Counsel saw the petitioner’s refusal to undergo a DNA test as an attempt to hide the truth.
7. Ms Makau urged that the orders sought ought to issue or protect the interests of the estate and those of the bona fide beneficiaries.
8. On the other hand, the petitioner’s counsel submitted that no basis had been laid for conducting a DNA test. It was urged that the applicants had not established an undoubted nexus to warrant an order mandating a DNA test. Counsel relied on the case of DNM v JK [2016] KEHC 3180 (KLR), which held that the applicants had the duty of showing an undoubted nexus between them and the deceased. Counsel further submitted that the birth certificate produced in Court showed that the applicants had different fathers. It was denied that the applicants had been acknowledged by, maintained by, or had any prior association with the deceased.
9. Counsel for the petition argued that DNA tests were, by their very nature, intrusive. He relied on the case of In re Estate of GHS (deceased) to support his contention that the Court should not compel an adult to undergo a DNA test. On the question of whether Caroline Anyango Juma was the sister of the deceased, it was urged that there was no proof that she was a sibling.
10. It was urged that the application was an abuse of the Court process as it was made after the case had been concluded. I was referred to the case of re Estate of MKK [2024]KEHC 13494(KLR), where the Court held that:
“...allowing the Application... for the purpose of conducting DNA tests after the Applicant's witnesses had all already testified and the Applicant closed his case would be tantamount to facilitating the Applicant to fill in presumed gaps which he may imagine to have arisen in his case... under our rules of procedure, Courts are discouraged from permitting or entertaining such practice.”
11. Counsel contended that rather than seeking to suppress evidence, the petitioner was merely seeking to preserve the estate for the benefit of the genuine beneficiaries.
12. I have considered the application, the response thereto, as well as the parties' written submissions. The question I must determine is whether I should order that the applicants undergo a DNA profiling test together with Ms Caroline Anyango Juma so that it can be determined if they are the deceased’s children.
13. As earlier indicated, the application was filed after the trial concluded. DNA tests aren’t ordered by the Courts as a matter of course; a party seeking a DNA test to be concluded must show that there are good grounds to do so. Since DNA tests are intrusive, it must be shown that there is an undoubted nexus between the deceased and the applicants, and that the evidence arising from the DNA test would help the Court reach a just decision.
14. Has an undoubted nexus been established? This is inconclusive. Although some of the deceased's siblings recognize the applicants, their birth certificates tell a different story. This situation is different from that in In re Estate of SMG (Deceased) [2024] KEHC 1536 (KLR).
15. The foregoing notwithstanding, I note that the proposed DNA test would be inconclusive for a number of reasons. Firstly, the Court must presume that Caroline Anyango Juma is the sister of the deceased. Secondly, even if it were the case that she is indeed his sister, a positive finding would not necessarily be conclusive that it was the deceased who fathered the applicants. The applicants could be the children of any of his other male siblings.
16. The application for a DNA test was made after the matter was concluded. Although the applicants expressed a wish to apply for such a test during the trial, they ought to have applied within a reasonable time rather than wait until the trial concluded. In my view, by doing so late in the day, they created the impression in the court's mind that they were trying to close gaps in their evidence. I therefore agree with what the Court stated in the case of In re Estate of MKK (deceased) [2024] KEHC 13494 (KLR) that allowing such an application now would not serve the interests of justice.
17. It would also be akin to what the Supreme Court faced in the case of THOMAS KIMUTAI BOIT & ANOTHER VS JOSEPH NDAYALA MUYESU SC Application No. E004 of 2024. In the said case, the Court stated that:
“[34] We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment, even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute, but rather satisfying the litigants' options to cherry-pick and engage in trial and error at the altar of judicial process without the attendant consequences.”
18. I do not agree that the petitioner’s opposition to the application should count against her. It is the applicants’ duty to convince the Court that the orders should issue, not the respondent’s duty to assist them. In any case, as her counsel submitted, the duty of the petitioner/respondent is to faithfully administer the estate and ensure that only those who are justly entitled to a share thereof benefit from it.
19. The upshot of the foregoing is that the application dated 1st December 2025 has no merit. It is dismissed with no order as to costs.
20. It is so ordered.
Dated and signed in Nairobi, this 14th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. The summons was heard by this Court on viva voce evidence. The hearing concluded on 21st October 2025. As the Court was about to give directions on the filing of written submissions, Ms Makau, learned counsel for the applicants, sought directions on whether the applicants should undergo a DNA test. The Court directed her to file an application seeking a DNA test. Pursuant to that leave, the applicants' counsel filed the notice of motion application dated 1st December 2025. The application seeks to have Felix Gordon Odhiambo, Vincent Gift Otieno and the sister of the deceased, Caroline Anyango Juma, undergo a DNA test at KEMRI to determine the paternity of the applicants herein in relation to the deceased. The applicants also prayed that the DNA results be forwarded to the Court and admitted as evidence.
3. The application was opposed by Ms Everlyne Nyaboke Aguko. She filed a replying affidavit sworn on 15th December 2025, vide which she deposed that the DNA test was unnecessary and intrusive. She further stated that no basis had been laid for such a drastic action, as no evidence was laid to show that the applicants were the dependants of the deceased or that they were recognized, acknowledged, maintained, or associated with him during his lifetime.
4. She averred that there was no evidence that the deceased and Ms Caroline Anyango Juma were siblings and that any DNA result obtained would at test be inconclusive. She stated that the DNA test ought to have been conducted during the deceased's lifetime or immediately prior to his burial. She saw in the application a ploy by the objectors/applicants to delay the conclusion of the matter.
5. The application was canvassed by way of written submissions. The submissions of the applicants’ counsel are dated 18th December 2025. Ms Makau urged that the only issue before the Court was whether the application had merit and if it should be allowed. It was urged on reliance on the decision of the Court in Wilfred Koinange Gathiomi v Joyce Wambui Mutura & another [2016] KEHC 7005 (KLR, that where there isn’t sufficient proof (of paternity), a scientific method, like DNA profiling, would be useful. Reliance was also placed on this Court’s decision in the case of In re Estate of SMG (Deceased) [2024] KEHC 1536 (KLR).
6. Counsel contended that the application was not an afterthought, as the applicants had always expressed a desire to apply for a DNA test. Regarding the birth certificates she submitted, these were secondary documents whose contents were rebuttable. Counsel saw the petitioner’s refusal to undergo a DNA test as an attempt to hide the truth.
7. Ms Makau urged that the orders sought ought to issue or protect the interests of the estate and those of the bona fide beneficiaries.
8. On the other hand, the petitioner’s counsel submitted that no basis had been laid for conducting a DNA test. It was urged that the applicants had not established an undoubted nexus to warrant an order mandating a DNA test. Counsel relied on the case of DNM v JK [2016] KEHC 3180 (KLR), which held that the applicants had the duty of showing an undoubted nexus between them and the deceased. Counsel further submitted that the birth certificate produced in Court showed that the applicants had different fathers. It was denied that the applicants had been acknowledged by, maintained by, or had any prior association with the deceased.
9. Counsel for the petition argued that DNA tests were, by their very nature, intrusive. He relied on the case of In re Estate of GHS (deceased) to support his contention that the Court should not compel an adult to undergo a DNA test. On the question of whether Caroline Anyango Juma was the sister of the deceased, it was urged that there was no proof that she was a sibling.
10. It was urged that the application was an abuse of the Court process as it was made after the case had been concluded. I was referred to the case of re Estate of MKK [2024]KEHC 13494(KLR), where the Court held that:
“...allowing the Application... for the purpose of conducting DNA tests after the Applicant's witnesses had all already testified and the Applicant closed his case would be tantamount to facilitating the Applicant to fill in presumed gaps which he may imagine to have arisen in his case... under our rules of procedure, Courts are discouraged from permitting or entertaining such practice.”
11. Counsel contended that rather than seeking to suppress evidence, the petitioner was merely seeking to preserve the estate for the benefit of the genuine beneficiaries.
12. I have considered the application, the response thereto, as well as the parties' written submissions. The question I must determine is whether I should order that the applicants undergo a DNA profiling test together with Ms Caroline Anyango Juma so that it can be determined if they are the deceased’s children.
13. As earlier indicated, the application was filed after the trial concluded. DNA tests aren’t ordered by the Courts as a matter of course; a party seeking a DNA test to be concluded must show that there are good grounds to do so. Since DNA tests are intrusive, it must be shown that there is an undoubted nexus between the deceased and the applicants, and that the evidence arising from the DNA test would help the Court reach a just decision.
14. Has an undoubted nexus been established? This is inconclusive. Although some of the deceased's siblings recognize the applicants, their birth certificates tell a different story. This situation is different from that in In re Estate of SMG (Deceased) [2024] KEHC 1536 (KLR).
15. The foregoing notwithstanding, I note that the proposed DNA test would be inconclusive for a number of reasons. Firstly, the Court must presume that Caroline Anyango Juma is the sister of the deceased. Secondly, even if it were the case that she is indeed his sister, a positive finding would not necessarily be conclusive that it was the deceased who fathered the applicants. The applicants could be the children of any of his other male siblings.
16. The application for a DNA test was made after the matter was concluded. Although the applicants expressed a wish to apply for such a test during the trial, they ought to have applied within a reasonable time rather than wait until the trial concluded. In my view, by doing so late in the day, they created the impression in the court's mind that they were trying to close gaps in their evidence. I therefore agree with what the Court stated in the case of In re Estate of MKK (deceased) [2024] KEHC 13494 (KLR) that allowing such an application now would not serve the interests of justice.
17. It would also be akin to what the Supreme Court faced in the case of THOMAS KIMUTAI BOIT & ANOTHER VS JOSEPH NDAYALA MUYESU SC Application No. E004 of 2024. In the said case, the Court stated that:
“[34] We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment, even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute, but rather satisfying the litigants' options to cherry-pick and engage in trial and error at the altar of judicial process without the attendant consequences.”
18. I do not agree that the petitioner’s opposition to the application should count against her. It is the applicants’ duty to convince the Court that the orders should issue, not the respondent’s duty to assist them. In any case, as her counsel submitted, the duty of the petitioner/respondent is to faithfully administer the estate and ensure that only those who are justly entitled to a share thereof benefit from it.
19. The upshot of the foregoing is that the application dated 1st December 2025 has no merit. It is dismissed with no order as to costs.
20. It is so ordered.
Dated and signed in Nairobi, this 14th day of April 2026. Delivered virtually through Microsoft TEAMS.