1. On 30th September 2021, this court, then differently constituted, ordered that the children of Saida Mohammed Swaleh, the objector/respondent, namely Fazal Mohamed and Jazleen Mohamed, undergo a DNA test to match samples taken from their bodies with those taken from the bodies of Mohammed Navid Khan and Mohamed Nadir Khan, the children of the deceased. The test was to be conducted within 30 days of the ruling date at the Kenya Medical Research Institute (KEMRI).
2. The objector/respondent did not comply. The petitioner/applicant filed another application dated 9th November 2021 seeking an extension of the compliance period. That application was allowed, and the court extended the compliance period by a further 30 days. Notwithstanding that extension and further orders of this court, no DNA test has been conducted to date. By an application dated 14th January 2026, the petitioner/applicant now seeks to have this court draw a negative inference from the objector/respondent’s failure to present her children for the said test, and to find and hold that Fazal Mohammed and Jazleen Mohammed aren’t the children of the deceased, on the ground that the failure to subject the said children to a DNA test was deliberate and unjustified, and was predicated on the fear that the truth would be known.
3. The application is opposed. Ms Saida Mohamed Swaleh gave a sworn deposition on 16th January 2026. Ms Swaleh accused the Petitioner/Applicant of being a vexatious litigant and of engaging in a fishing expedition. She averred that she wasn’t opposed to the DNA test but merely sought directions to ensure that all the alleged children of the deceased were tested. She said that the DNA test wasn’t the only way to prove paternity, as oral and circumstantial evidence could suffice.
4. The petitioner/applicant responded to the affidavit of Ms Swaleh through a replying affidavit sworn on 21st January 2026.
5. The application was canvassed by way of written submissions. Both parties complied. The firm of Ms Kagwima Karanja & Co. Advocates filed written submissions dated 13th February 2026, on behalf of the petitioner/applicant, vide which they urged this court to allow the application. On the other hand, the objector/respondent opposed the application by way of written submissions dated 24th February 2026.
6. I have considered the said application, the response thereto, as well as the written submissions of the parties. Should the court allow the application? In my view, it shouldn’t do so, at least at this point. The conclusions that the petitioner/applicant seeks are of the type that the court should make on the judgment after looking at the evidence in totality. Thus, whereas it is open to the petitioner/applicant to persuade the court to apply the dictum in the Chase Bank (Kenya) Limited v Cannon Assurance (K) Limited [2019] KECA 313 (KLR), that should be done in the final submissions in respect of the summons for the revocation of the grant. The said option is still open to her.
7. In the Chase Bank case (supra), the Court of Appeal stated as follows:
“Again, the court is at liberty to conclude from such omission an adverse inference by weighing the evidence before it. Where the court has ordered the production of certain documents, and the party so ordered fails to produce the documents, the court can permit the leading of secondary evidence. It is further open to the court to draw an adverse inference as provided under Section 119 of the Evidence Act, which states:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
This provision in our Evidence Act embodies the doctrine of spoliation or suppression of evidence. Under this doctrine, it is generally the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy. Where such material is withheld, the court may draw an adverse inference. (See Woodroffe’s Law of Evidence, 9th Edition, at pages 811- 816).
8. I note that the matter has been in court for an unduly long period. In my view, the multiplicity of applications filed herein hasn’t been helpful. It is now time for this matter to be concluded, one way or the other, so that the parties can move on.
9. In the circumstances, I dismiss the application dated 14th January 2026. I order that parties bear their own costs.
10. It is so ordered.
Dated and Signed at Nairobi this 6th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. The objector/respondent did not comply. The petitioner/applicant filed another application dated 9th November 2021 seeking an extension of the compliance period. That application was allowed, and the court extended the compliance period by a further 30 days. Notwithstanding that extension and further orders of this court, no DNA test has been conducted to date. By an application dated 14th January 2026, the petitioner/applicant now seeks to have this court draw a negative inference from the objector/respondent’s failure to present her children for the said test, and to find and hold that Fazal Mohammed and Jazleen Mohammed aren’t the children of the deceased, on the ground that the failure to subject the said children to a DNA test was deliberate and unjustified, and was predicated on the fear that the truth would be known.
3. The application is opposed. Ms Saida Mohamed Swaleh gave a sworn deposition on 16th January 2026. Ms Swaleh accused the Petitioner/Applicant of being a vexatious litigant and of engaging in a fishing expedition. She averred that she wasn’t opposed to the DNA test but merely sought directions to ensure that all the alleged children of the deceased were tested. She said that the DNA test wasn’t the only way to prove paternity, as oral and circumstantial evidence could suffice.
4. The petitioner/applicant responded to the affidavit of Ms Swaleh through a replying affidavit sworn on 21st January 2026.
5. The application was canvassed by way of written submissions. Both parties complied. The firm of Ms Kagwima Karanja & Co. Advocates filed written submissions dated 13th February 2026, on behalf of the petitioner/applicant, vide which they urged this court to allow the application. On the other hand, the objector/respondent opposed the application by way of written submissions dated 24th February 2026.
6. I have considered the said application, the response thereto, as well as the written submissions of the parties. Should the court allow the application? In my view, it shouldn’t do so, at least at this point. The conclusions that the petitioner/applicant seeks are of the type that the court should make on the judgment after looking at the evidence in totality. Thus, whereas it is open to the petitioner/applicant to persuade the court to apply the dictum in the Chase Bank (Kenya) Limited v Cannon Assurance (K) Limited [2019] KECA 313 (KLR), that should be done in the final submissions in respect of the summons for the revocation of the grant. The said option is still open to her.
7. In the Chase Bank case (supra), the Court of Appeal stated as follows:
“Again, the court is at liberty to conclude from such omission an adverse inference by weighing the evidence before it. Where the court has ordered the production of certain documents, and the party so ordered fails to produce the documents, the court can permit the leading of secondary evidence. It is further open to the court to draw an adverse inference as provided under Section 119 of the Evidence Act, which states:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
This provision in our Evidence Act embodies the doctrine of spoliation or suppression of evidence. Under this doctrine, it is generally the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy. Where such material is withheld, the court may draw an adverse inference. (See Woodroffe’s Law of Evidence, 9th Edition, at pages 811- 816).
8. I note that the matter has been in court for an unduly long period. In my view, the multiplicity of applications filed herein hasn’t been helpful. It is now time for this matter to be concluded, one way or the other, so that the parties can move on.
9. In the circumstances, I dismiss the application dated 14th January 2026. I order that parties bear their own costs.
10. It is so ordered.
Dated and Signed at Nairobi this 6th day of May 2026. Delivered virtually through Microsoft TEAMS.