FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1322 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Appeal E043 of 2022

SG Kairu, P Nyamweya & GV Odunga, JJA

November 10, 2023

Between

FAAF

Appellant

and

RFM

1^st Respondent

JMM

2^nd Respondent

MCP

3^rd Respondent

(Being an appeal from the judgement of the High Court of Kenya at Mombasa rendered by the Hon Jutice J.N. Onyiego on 25th March 2022 in Succession Cause 200 of 2015)

Children born out of wedlock under Islamic Law are entitled to benefit from the estate of their deceased father

The appeal arose from a succession dispute regarding parties who claimed to be entitled to the deceased’s estate. The court held that if children born during the subsistence of a marriage were entitled to benefit from the estate of their deceased father, to hold that children born out of wedlock were not to benefit from the same estate would amount to unfair and unjustified discrimination. Further, there was no rational justification to warrant creating a distinction between children born out of wedlock when it came to their entitlement to the estate of their father under Islamic Law.

Reported by Kakai Toili

Constitutional Law – fundamental rights and freedoms – children rights – right to equality and freedom from discrimination - whether excluding children born out of wedlock from benefitting from the estate of their deceased father under Islamic Law amounted to unfair and unjustified discrimination – whether children born during cohabitation and treated by their deceased father as his own children were entitled to benefit from the deceased’s estate despite their paternity being in dispute - Constitution of Kenya, articles 27(1)-(5) and 53(1)(d).Evidence Law – evidence – expert opinions - whether expert opinions were binding on courts.Family Law - paternity - paternity testing - orders for DNA samples of children to be taken where their paternity was in dispute - whether orders for DNA could be granted where none of the parties to a suit had made an application for it.

Brief facts The 1^st and 2^nd respondents, in their capacities as wife and sister-in-law of the deceased respectively, petitioned for a grant of letters of administration intestate of the deceased’s estate at the High Court (trial court). At the same time, the appellant, also describing herself as a wife to the deceased filed another succession case in respect of the same estate before the Kadhi’s Court where she named herself and her children as the only beneficiaries of the deceased’s estate. The appellant lodged an objection opposing the making of a grant to the 1^st and 2^nd respondents on grounds that they were not beneficiaries to the estate. The trial court’s matter and the Kadhi’s Court one were consolidated under the trial court cause. According to the appellant, she was the lawful wife to the deceased having been married vide Islamic law and they were blessed with four children who were the rightful heirs of the deceased’s estate. Further, that the 1^st respondent’s children were not heirs to the estate of the deceased since they were born before the deceased officiated his alleged marriage with the 1^st respondent and under Islamic law, illegitimate children could not inherit the estate of their father. The 1^st respondent’s case was that she was the widow to the deceased and were blessed with four issues. They solemnized an Islamic marriage and duly issued with a marriage certificate. The 3^rd respondent’s case was that she was the deceased’s third wife and that they solemnized their marriage before the Kadhi and were blessed with one issue; that she was previously married to a foreigner and that the law allowed her to remarry after seven years of disappearance of her husband.The trial court issued among other order; a declaration that the appellant and the 1^st respondent were widows of the deceased and therefore beneficiaries of the deceased’s estate; that the 3^rd respondent’s marriage to the deceased was void for lack of capacity to get married to the deceased and therefore not a beneficiary; the children of the appellant born within wedlock were heirs hence beneficiaries to the estate and that the fate of the three children sired by the 1^st respondent and the 3^rd respondent whose paternity was in dispute shall be subjected to a DNA test. Aggrieved, the appellant preferred the instant appeal while the 3^rd respondent filed a cross appeal.

Issues

Whether excluding children born out of wedlock from benefitting from the estate of their deceased father under Islamic Law amounted to unfair and unjustified discrimination.
Whether children born during cohabitation and treated by their deceased father as his own children were entitled to benefit from the deceased’s estate despite their paternity being in dispute.
Whether expert opinions were binding on courts.
Whether orders for DNA could be granted where none of the parties to a suit had made an application for it.

Held

The finding by the trial court regarding the explanation for the discrepancies in the names of the 1^st respondent and the deceased at the time of the marriage was not wrong. The explanation was plausible and the instant court could not interfere with it. There was unchallenged evidence of long cohabitation between the 1^st respondent and the deceased. There was evidence of the 1^st respondent’s conversion to Islam and subsequent solemnization of her marriage with the deceased culminating into the issuance of a marriage certificate. In those circumstances there was no basis upon which the court could interfere with the findings by the trial court that there existed a valid marriage between the 1^st respondent and the deceased at the time of the deceased’s death.
The standard of proving an offence of forgery was very high and such a finding could not be based on merely the opinion of an investigating officer. In the absence of a finding by the court on that issue, the trial court could not be faulted for not taking it into account. The evidence of the Registrar was not expert opinion evidence. It was simply factual evidence that was subject to belief by the court. While due deference ought to be given to expert opinion, such opinions were not necessarily binding on the court.
Article 27(1) to (5) of the Constitution provided for the right to equality and freedom from discrimination. The operating words were that “the State shall not discriminate directly or indirectly against any person on any ground”. By employing the word “including”, it showed that the examples set out were not conclusive and therefore other grounds of discrimination could exist. If children born during the subsistence of a marriage were entitled to benefit from the estate of their deceased father, to hold that those children born out of wedlock were not to benefit from the same estate would amount to unfair and unjustified discrimination.
There was no rational justification to warrant creating a distinction between children born out of wedlock when it came to their entitlement to the estate of their father under Islamic Law. To deny children born out of wedlock the benefit which accrued to other children born in wedlock on the basis of the alleged “sins” committed by their parents, could not be justified since it would mean that the court would be adopting hurtful discrimination and stereotypical response to a clear case of discrimination.
The rights of the children must be distinguished from marital issues. Whereas a man and a woman who entered into a relationship that was not legally recognized as husband and wife, such as where there already existed a monogamous marriage by one of them, could not lay claims as regards the estate of the other upon death. The issues of such relationships ought to be treated differently from their parents. That came out from a reading of article 53(1)(d) and e of the Constitution. Culture that was harmful to a child in the sense that it denied such a child his or her otherwise right to parental care and protection on the ground of marital status of the father and the mother could not be countenanced.
Article 10(1) of the Constitution provided that the national values and principles of governance in the article bound all State organs, State officers, public officers and all persons whenever any of them, inter alia, applied or interpreted the Constitution or any law. Judges, being State officers and the courts, being State organs, in their task of applying and interpreting the Constitution and the law, were bound by that article. Those principles included, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.
The court’s decisions must reflect the values and principles which included non-discrimination and protection of the marginalized. Consequently, any cultural practice that discriminated against children on the ground of their parents’ marital status must be abhorred. The 1^st respondent and her children born from the relationship between the deceased and the 1^st respondent were entitled to benefit from the estate of the deceased.
The 3^rd respondent was already married at the time that she purported to have entered into a marriage with the deceased. That marriage had not been dissolved. The purported marriage between the deceased and the 3^rd respondent during the pendency of her earlier marriage was null and void based on lack of capacity on her part. Accordingly, the 3^rd respondent was not a wife or widow of the deceased.
DNA as a procedure for determining paternity ought to be very cautiously resorted to since the consequences of such a procedure on a family could be dire. While that procedure was not illegal, it ought to be resorted to only where a basis for it had been laid and an application made seeking that procedure. It ought not to be granted in case where none of the parties to the proceedings had sought for it unless the court found that based on the manner in which the proceedings were conducted, the issue was open to the court to make a finding in that regard.
In cases, such as in the instant one, where the person who was alleged to have sired the children whose paternity was disputed was dead and buried, that procedure should be resorted to very sparingly as quite often it had the consequence of having to exhume the body of the deceased which more often than not turned out to be a futile exercise due to time lapse between the date of interment and the date of exhumation.
In objection proceedings, the burden was on the objector to prove that the proposed distribution of the estate by the petitioner was not proper or legally correct. That burden was on a balance of probabilities. Where an objector failed to prove what she set out to persuade the court to do, the court could not, on its own motion, set out to assist, as it were, by making orders geared towards the proof or disproof of the objection.
There was evidence that the children sired by the 1^st respondent and the 3^rd respondent whose paternity was in dispute and whom the trial court directed that DNA samples be taken, notwithstanding the Islamic law, were born during the cohabitation between the deceased and the 1^st and 3^rd respondents and the deceased treated them as his own children during the deceased’s lifetime. Therefore, even if paternity was disputed, they were entitled to benefit from the deceased’s estate as dependants.
The issue of DNA did not arise and the trial court erred in directing that DNA samples be taken to determine paternity. In any case the mode of taking DNA samples from the children whose paternity was disputed and comparing them with those of the children of the appellant whose samples themselves had not been compared with those of the deceased was a very unsatisfactory way of determining paternity.
The issue of DNA sampling was not raised by any of the parties before the trial court and should not have been the basis upon which the paternity of the children and their entitlement to the estate of the deceased should have been based.

Appeal partly allowed.

Orders

Appeal allowed as regards the order directing that the DNA samples of the children sired by the 1^st and the 3^rd respondents whose paternity was in dispute be subjected to a DNA test after extracting samples from their bodies and compared with those extracted from the bodies of at least two of the appellant’s children whose paternity was not in dispute which order the instant court set aside.
The court substituted therefor an order that all the children of the appellant, the 1^st and the 3^rd respondent were entitled to benefit from the estate of the deceased either as dependants or as beneficiaries to his estate.
The matter was remitted back to the High Court to determine the respective entitlements of the beneficiaries. The same to be undertaken by any High Court Judge sitting in Mombasa other than Onyiego, J.
No order as to the costs of the appeal

Citations Cases Kenya

Apeli v Buluku Civil Appeal 12 of 1979; [1980] KECA 39 (KLR); [1985] KLR 777 - (Explained)
CKC & CC (Suing through their mother and next friend JWN) v ANC Civil Appeal 121 of 2018; [2019] KECA 354 (KLR) - (Followed)
EMM v IGM & another Civil Appeal 114 of 2012; [2014] eKLR - (Followed)
In Re Estate of CCBH (Deceased) Succession 436 of 2004; [2018] eKLR - (Followed)
In re Estate of Ismail Juma Chelanga (Deceased) Probate & Administration Cause 2258 of 96; [2002] eKLR - (Followed)
In re Estate of Ismail Osman Adam (Succession Cause 121 of 1991) [2017] KEHC 5643 (KLR) - (Followed)
In re Estate of Ramadhan Hassan (Deceased) Succession Cause 60 of 2013; [2014] KEKC 7 (KLR) - (Followed)
Jabane v Olenja Civil Appeal 2 of 1985; [1986] KECA 21 (KLR); [1986] KLR 661 - (Explained)
Karanja & 2 others v Karanja & another Civil Appeal 313 of 2001; [2009] eKLR; [2009] KLR 11 - (Followed)
Kimani v Republic Criminal Appeal 36 of 1994; [2000] eKLR; [2000] KLR 303; [2000] 2 EA 417 - (Followed)
Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko Civil Appeal 203 of 2001; [2006] KECA 130 (KLR); [2007] 1 EA 139 - (Explained)
Kiruga v Kiruga & another Civil Appeal 52 of 1985; [1988] eKLR; [1988] KLR 348 - (Explained)
LNW v Attorney General & 3 others Petition 484 of 2014; [2016] eKLR - (Followed)
RB & GO v HSB & ASB Succession Cause 301 of 2014; [2014] eKLR - (Followed)
SMH v RHH Civil Suit 124 of 2014 - (Followed)
Wanjiru, Joseis v Kabui Ndegwa Kabui and another Civil Appeal 322 of 2005; [2014] KECA 609 (KLR) - (Followed)
Waweru, Peter K v Republic Miscellaneous Civil Application 118 of 2004; [2006] KEHC 3202 (KLR) - (Explained)
Yhap, James Shugars v Eric Okeno & others Civil Suit 2 of 2014 - (Followed)

South AfricaMinister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) - (Explained) United Kingdom

Re Matheson [1958] 1 ALL ER 202 - (Followed)
Watt v Thomas [1947] AC 484 - (Followed)

IndiaRevanasiddappa & another v Mallikarjun & others Civil Appeal No. 2844 of 2011 - (Explained) CanadaAndrews v Law Society of British Columbia (1989) 1 SCR 321 - (Explained) Regional Court

Mbogo & another v Shah [1968] EA 93 - (Followed)
Peters v Sunday Post Ltd [1958] EA 424 - (Followed)
Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 - (Applied)
Shah v Shah [2003] 1 EA 290 - (Followed)

Statutes Kenya

Constitution of Kenya articles 10(1); 24(4); 27(1,5); 170(5) - (Interpreted)
Law of Succession Act (cap 160) sections 3, 29 - (Interpreted)
Marriage Act (cap 150) section 11- (Interpreted)

AdvocatesMr Magiya for the appellant

Judgment

1.SJHK (the deceased) passed away on the February 23, 2015 in Tanzania. Having died intestate, on May 22, 2015 the 1^st and 2^nd respondents herein, in their capacities as wife and sister in law respectively, petitioned for a grant of Letters of Administration Intestate of his estate in Mombasa High Court Petition No 200 of 2015. They listed the deceased’s dependants as RFM (wife), S (son-minor), L (daughter-minor), H (son-minor) and T (son-minor) and the assets of the estate as comprising of [Particulars Withheld] petrol station in Diani, Plot no xxxx–Diani, Plot no xx/xxx/MN-Kilifi, Lorry registration. No xxxS-Mitsubishi Fuso, Barclays Bank Account, Blue Jay Barclays Account, Cooperative Bank Account and Imperial Bank Account, particulars of whereof they gave.

2.At the same time, on May 20, 2015, the appellant herein, also describing herself as a wife to the deceased filed another succession case in respect of the same estate before the Kadhi’s Court being succession Case No 92 of 2015 where she named herself and her children as the only beneficiaries of the deceased’s estate.

3.Upon realizing that the there was a petition filed before the High Court by the 1^st and 2^nd respondents, the appellant lodged an objection dated July 9, 2015 opposing the making of a grant to the 1^st and 2^nd respondents on grounds that they were not beneficiaries to the estate. Subsequently, on 22^nd September, the appellant filed an answer to the petition for grant and petition by way of cross- petition for a grant in opposition to the 1^st and 2^nd respondent’s petition.

4.The High Court matter and the Kadhi’s Court one were eventually consolidated under the High Court Cause. The 3^rd respondent herein was joined as an interested party before the trial court.

5.On February 15, 2017, parties agreed to have a temporary grant of letters of administration made to the appellant, 1^st respondent and the 3^rd respondent jointly and that each administrator to give an accurate account in respect of the assets under her control. As the parties were unable to agree on the mode of distribution of the estate, the matter proceeded to full hearing of the petition, objection, answer to petition and cross petition.

6.According to the appellant, she was the lawful wife to the deceased having been married vide Islamic law on 4^th August, 2006; that they were blessed with four children whose names she set out; that these were the rightful heirs to the estate of the deceased; that together with the deceased they owned several properties whose particulars she set out, as well as the deceased’s liabilities; that the respondents were strangers to the estate; that the 1^st and 2^nd respondents did not seek her consent as required by law before petitioning for the letters of administration intestate; that the 1^st respondent was not a wife to the deceased; that the 1^st respondent’s children were also not heirs to the estate of the deceased since they were born before the deceased officiated his alleged marriage with the 1^st respondent; and that under Islamic law, illegitimate children cannot inherit the estate of their father; that such children can only inherit from their mother.

7.It was further stated that the 1^st respondent’s alleged marriage to the deceased before the Kadhi was verified to be null and void as the same was illegally procured; that one of the beneficiaries listed in the petition, S, was not a biological child of the deceased since investigations at Agha Khan hospital where the beneficiary was born on July 14, 1998, revealed that the beneficiary’s father is one TM; that S was not a student at the school at which it was alleged he was, yet a school leaving certificate from that school was used to apply for his birth certificate which was also issued on April 15, 2015 about two (2) months after the death of the deceased; and that the birth certificates for the other three children (L, H and T) were issued on the basis of a marriage certificate that was declared null and void by the Kadhi as per the Islamic law.

8.The appellant’s further case was that the 1^st respondent’s conversion certificate indicated that she was RIM yet the marriage certificate she attached to prove that she was married to the deceased was in the name of WIM; that the 1^st respondent and WIM do not refer to the same person; that since there is no marriage certificate in the name of RIM, the 1^st respondent was never married to the deceased; that the marriage certificate entry No. xxx/xx serial B4xxx between the deceased and the 1^st respondent was confirmed by the Chief Kadhi in reply to the letter by the C.I.D to be a forgery, null and void as the said certificate belonged to ADM and ATK; that the second Islamic Marriage xxx/xx though genuine, shows that the marriage was between WIM and the deceased and not the 1^st respondent; and that the Kadhi who officiated the said marriage wrote a statement in which he stated that he was misled by the 1^st respondent when she claimed she was WIM instead of RIM as per the conversion certificate. According to the appellant, the prosecution of the 1^st respondent with 8 counts of forgery by the ODPP was sufficient proof of forgery of documents relied on by the 1^st respondent in this case.

9.It was the appellant’s contention that the 3^rd respondent was not a rightful heir to the estate of the deceased since she was not legally married to the deceased given that she had submitted two marriage certificates in her list of documents which upon investigation by the police revealed that she had contracted a marriage with the deceased under Islamic Law vide certificate no. xx/xx in the names of MCP and SJH and a second one No. xxx/2004 between MCP and CDP; that the latter marriage was still valid and subsisting when she consummated the former marriage with the deceased which was hence null and void; that the green card for Plot xxxx was in the name of the deceased before it was illegally transferred to the 3^rd respondent; that the same was issued using a forged ID and death certificate s/no. 06xxxxx of the deceased culminating to issuance of a title deed on August 27, 2015 long after the deceased had died and without a grant in place; that plot no 2xxx Diani was similarly transferred from the deceased’s name into the 3^rd respondent’s name on August 26, 2015 using a forged death certificate; that SJ who obtained the forged death certificate was charged and pleaded guilty to obtaining a document through forgery; and that the the transfers of the plots were made using an Identity card that had since become invalid, the deceased having been issued with a new Identity Card with the name SJH on January 23, 2014 pursuant to a gazette notice dated August 28, 2012 after the deceased signed a deed poll in the year 2012.

10.It is also averred that H was not the deceased’s child since the birth certificate was not genuine as the name of the father indicated therein was SJHK, yet at the time the birth certificate was issued the deceased’s name was M and not K and that during the application for the birth certificate, the child’s father ID was not produced on grounds that it was not there.

11.It was concluded by the appellant that both the 1^st respondent and the 3^rd respondent and their children were not beneficiaries of the deceased’s estate but mere busy bodies intending to steal the deceased’s estate, a fact which the DPP has noted and preferred criminal charges against them.

12.On cross- examination, the appellant insisted that she was married to the deceased on August 4, 2006 and they remained together until his death; that whereas she and the deceased owned properties in Mombasa and Nairobi, she could not confirm where the deceased stayed when he visited Nairobi; that she filed Children Case 320 of 2014 at Tononoka because she wanted her children to be maintained by the deceased since the deceased used to travel most of the time and she could not tell where he was disappearing to; that she objected to DNA testing of the Children of the 1^st respondent and the deceased because paternity testing is outlawed in Islamic religion; that she filed a divorce cause before the Kadhi’s Court being Civil Suit No 245 of 2013 because there was a misunderstanding between her and the deceased but their differences were resolved; that “talaka” is not a divorce, and that the case before the Kadhi was never concluded because she was unable to effect service upon the deceased; that after conversion, Islamic laws govern the converted; that when contracting an Islamic marriage, both parties must first show their I.D Cards or Passports; that she was not aware whether the documents supporting the marriage between the 3^rd respondent and the deceased were forgeries.

13.CPL George Richard Murungi who testified as appellant’s witness No. 2 stated that he investigated criminal case 2319 of 2016 wherein the 1^st respondent was charged with the offences of obtaining registration by false pretences; that he was also among the investigating officers in Criminal Case 515 of 2017 where the 3^rd respondent was charged with the offence of bigamy; that after his investigations, he established that all the birth certificates were late applications which, although genuinely issued, were fraudulently obtained, using forged documents; that Agha Khan Hospital confirmed that a current birth certificate entry for S was issued immediately after birth and the name of the father was TAM; that the Director National Registration Bureau confirmed that on November 22, 2010 the bearer of Identity card was SJM and that on January 23, 2014, the name changed to S JHK; that charges of bigamy were preferred against the 3^rd respondent; that he was not aware that there were divorce proceedings between Carlo Pasquelle and the 3^rd respondent and that he did not know how long C and the 3^rd respondent stayed separated; and that he did not know that Criminal Case No. 515 of 2017 was thrown out since he was transferred before the case was completed.

14.Appellant’s witness number 3, Jackson Mulandi Wambua, a retired civil registrar testified that all the contested certificates of birth were applications for late registration and they were genuine; that L was born at Tudor on October 8, 2003 and her father was the deceased and the 1^st respondent was the mother; that an explanation was proffered why the ID of the father could not be produced; that he was not involved in the issuance of the birth certificate for S; that the application for registration of birth for H was made by the 1^st respondent after production of the relevant documents; and that the application for registration of T was made by RRK who described himself as an uncle of the child after presentation of the relevant documents.

15.Appellant’s witness number 4, Joseph Odhiambo Ndonga, an employee of the Agha Khan hospital confirmed that the 1^st respondent delivered her first birth of a male child known as S on July 14, 1998 and was issued with a notification number while the second child was born on October 8, 2003. OW5 MJM, a younger brother to the deceased stated that the deceased had one wife, the appellant, and four children; that he was not aware that the deceased had any conflict with the appellant; and that he was not aware that the deceased was married to another wife.

16.OW6 Mohamed Hassan Omar who claimed to be a close friend of the deceased testified that the deceased lived with the appellant and their four children until his death; that it was the appellant and the deceased who built and developed their properties together and that the deceased used to send him to the appellant to get money to pay construction workers; that in Islam, illegitimate children cannot inherit their father’s property; that there was nothing stopping the deceased from marrying another wife; and that there was no divorce between the appellant and the deceased as they had reconciled before the divorce could be finalised.

1^st and 2^nd Respondents’ Case

17.The 1^st respondent’s case was that she was the widow to the deceased having met him when she was 23 years old; that they could not get married since she was a Christian and the deceased was a Muslim; that when her father died she started cohabiting with the deceased from the year 2000 thus culminating into a union which was blessed with four issues; that she converted into Islam and was issued with a certificate of conversion on July 12, 2011 hence acquired the name RIM; that on December 11, 2011, they solemnized an Islamic marriage where the marriage officer insisted that she be given a Swahili name and as a result she was given the name WM by the deceased in the presence of her mother (JW), the 2^nd respondent and one James Bosire as witnesses; and that they were duly issued with a marriage certificate.

18.According to the 1^st respondent, the deceased used to go by the name SJK which later changed vide a deed poll dated May 28, 2012 to SJM; that the deceased and the appellant had divorced before the Kadhi’s Court being civil suit No. 245 of 2013 on the appellant’s allegation that the deceased had deserted his family; and that the appellant admitted that she had received a “talaka” from the deceased on November 6, 2013.

19.The 1^st respondent’s case was that during her marriage to the deceased, they moved to Nairobi and lived in Kileleshwa; and that later on, they bought property in Mombasa LR 20xx/xxxxx and a second property in Nyali LR No xxxx/I/MN, which became their matrimonial property till the demise of the deceased; that it was the deceased who processed all the birth certificates belonging to her four children before his demise; and that she had been charged with the offence of forgery before a magistrate court in Mombasa which case was still pending.

20.The 2^nd respondent, a sister to the 1^st respondent, on the other hand, told the court that other than the 1^st respondent and her four children, she did not know of any other child or wife to the deceased; that she attended the wedding between the 1^st respondent and the deceased conducted at Jamia mosque in Nairobi witnessed by their mother and one Mr Bosire and a marriage certificate duly issued.

3^rd Respondent’s Case

21.The 3^rd respondent’s case was that she was the deceased’s third wife having started cohabiting in the year 2011 and lived together in Diani as husband and wife till July 7, 2013 when she eventually converted to Islam and finally solemnized their marriage before the Kadhi; that their union was blessed with one issue by the name H; that she was previously married to a foreigner, who left her after seven years; that the law allows her to remarry after seven years of disappearance of her husband; that she was charged vide Criminal Case No 515 of 2017 but the appellant lost as the case was withdrawn; that she never officially dissolved her first marriage in court and that she was not aware of the divorce cause No 34 of 2014 before the High Court in Mombasa, since she never participated in the said proceedings; and that the deceased had informed her that the 1^st respondent was his wife and that the appellant was deceased.

22.In her evidence, during the subsistence of her marriage with the deceased, they jointly acquired Kwale/Diani Settlement Scheme/xxxx and 2xxx from one RJD, with the deceased contributing a sum of Kshs 1.9 million while she contributed a sum of Kshs 3 million towards the purchase; that she was the one who engaged a contractor to build her house using her own money; that before the deceased’s death, they used to run a petrol station in Ukunda known as Blue Jay which stood as collateral security on a loan of Kshs. 20,000,000/= secured from the First Community Bank; that at the time of the deceased’s demise, there was an outstanding loan of Kshs 3,050,000; and that since there was no money to service the loan after both the 1^st respondent and the appellant disappeared, she leased out the petrol station to one Ben Okoth who had since repaid the loan in full and was recovering his money in the tune of Kshs 100,000 monthly before moving out.

23.The 3^rd respondent insisted that her marriage to the deceased was legal; that she did not know that the deceased had changed his name since the name of her husband in the agreement for sale entered into on 21^st October 2013, was SJHK and that to transfer the property she used the deceased’s Identity Card and their marriage certificate; that it was her sister in law, Saumu, who processed the deceased’s death certificate at the Kilifi registry; that she was not aware whether Saumu was charged with forgery of a death certificate; that the transfer of the property in Kwale was done after the deceased had died; that her child was born on 19^th December, 2013, which was six months after her marriage to the deceased; and that the Kwale plots were jointly owned and upon the death of the deceased, the properties vested upon her as the surviving proprietor

24.Swaleh Omar Mohamed (3^rd respondent’s witness), an Assistant Registrar, Islamic marriage and divorce stated that he officiated the marriage between the 3^rd respondent and the deceased on the July 7, 2013 and issued them with a marriage certificate; and that he was not informed of the 3^rd respondent’s former marriage and that he did not know the foreigner who was her husband. MM (3^rd interested party’s witness), a Sheikh stated that he was a witness to the marriage between the deceased and the 3^rd respondent and that his signature was on the marriage certificate; that when somebody converts to Islamic religion, her former civil marriage is dissolved; and that he knew that the 3^rd respondent was formerly a christian.

High Court Judgement

25.In his judgement, the learned Judge of the High Court identified the issues for determination as: the applicable law pertaining to the estate of the deceased; the widows to the deceased; the bona fide beneficiaries of the estate of the deceased; the deceased’s dependants and their rights; the assets of the deceased’s estate; outstanding liabilities of the estate; and distribution of the estate.

26.It was the findings of the learned Judge that since the deceased was a Muslim, the applicable law was the Islamic law pursuant to article 170(5) of the Constitution; and that though ordinarily, the Kadhi’s court has jurisdiction under the Kadhi’s Act where all parties submit to Islamic religion, since some of the issues raised revolve around the question whether the 1^st respondent ever converted to Islamic religion, the High Court was the right forum. In arriving at the said decision, the learned Judge cited the holding of this Court in the case of Re the Estate of Ismail Osman Adam (Deceased), Noorbanu Abdul Razak v AbdulKader Ismail Osman, Mombasa Civil Appeal No 285 of 2009.

27.The learned Judge also found that the deceased died intestate on February 23, 2015 in Tanzania; that the appellant and the deceased were married at some point and their union was blessed with four issues who are the beneficiaries of the estate of the deceased; that the appellant filed a divorce cause civil case No 245 of 2013 before the Kadhi’s court; that the appellant is a widow to the deceased since the divorce between her and the deceased was never finalised; that in the absence of any divorce certificate or any witness in accordance with the Islamic law to confirm the divorce between the deceased and the appellant, the allegations of divorce remain unsubstantiated; that therefore by the time the deceased died, the appellant was still lawfully married to the deceased, was a widow to the deceased and therefore a beneficiary to the deceased’s estate.

28.It was found by the learned Judge that the allegation that the marriage certificate between the 1^st respondent and the deceased was forged was not proved by calling the celebrating officer to confirm that there was no marriage celebrated between the deceased and 1^st respondent; that the deceased as a Muslim man, he was allowed to be in a polygamous arrangement of not more than four wives; that therefore, the deceased had capacity to contract a marriage with the 1^st respondent; that presumption of marriage as a concept is unknown in Islamic Sharia and the learned based his decision on Dr (Mrs) Nishi Patel’s, The principles of Mohammedan law, 1995, CTS Publication, cap XIII entitled “Law of Parentage”, at pp 251.

29.The court however found that the discrepancy in names of the contracting parties to the marriage celebrated on December 11, 2011, did not in any way alter the true wishes of the 1^st respondent and the deceased, which was to enter into an Islamic marriage; that the evidence of marriage was demonstrated by a marriage certificate issued albeit with such errors on names which were reasonably explained; and that consequently, the 1^st respondent was a wife to the deceased having been married on December 11, 2011 hence legally entitled to a share to the estate as a widow.

30.Regarding the 3^rd respondent’s marriage the learned Judge found, that the 3^rd respondent was engaged in a valid civil monogamous marriage before she allegedly converted to Islamic religion and proceeded to marry the deceased under Islamic law; that conversion to Islamic religion is not a process through which dissolution of a statutory marriage is executed; that the 3^rd respondent ought to have dissolved her statutory marriage before contracting another marriage; that the 3^rd respondent committed an act of bigamy; and that mere intention or contemplation to divorce is not synonymous to divorcing. In support of his findings the learned Judge cited the decision of this court in Joseis Wanjiru v Kabui Ndegwa Kabui and another [2014] eKLR and Mombasa High Court Case between James Shugars Yhap v Eric Okeno & others Phylis Njoki Karanja & two others v Rosemary Mueni Karanja & another [2009] eKLR, and held that the deceased and the 3^rd respondent had no capacity to marry and that the doctrine of presumption of marriage does not apply where one has no capacity to marry.

31.Regarding the issue of the bona fide beneficiaries of the estate of the deceased, the learned Judge held that all the appellant’s children were biological children of the deceased and their status as legitimate children had not been challenged; that the 1^st respondent and the appellant were widows to the deceased and therefore qualified to inherit the deceased’s estate; that the cause of disagreement was the legitimacy of the 1^st respondent’s children and the 3^rd respondent’s child; and that under Islamic law, one is entitled to inheritance by blood or marital relationship and religion. In this regard the learned Judge cited the decision In Re Estate of CCBH (deceased) [2018] eKLR, Succession Case No 46 of 2004, CKC & CC v ANC, in which the court cited with approval Dr (Mrs) Nishi Patel’s, The principles of Mohammedan law, 1995, CTS Publication, cap XIII entitled “Law of Parentage”, at pp 251, In Re Estate of Ramadhan Hassan (Deceased) [2014] eKLR and In the matter of Ismail Chelanga deceased (2002) eKLR.

32.Notwithstanding the evidence of the Islamic Law touching on children born outside wedlock, the learned Judge found that in the interest of justice the children born out of wedlock ought not to suffer. It was his position that DNA samples be taken to determine paternity.

33.As for the 1^st respondent’s children, the learned Judge found that since there was evidence that S was born at Agakhan hospital on July 14, 1998 before the 1^st respondent started cohabiting with the deceased, S could not be said to have been sired by the deceased nor was any evidence tendered to show that the deceased had accepted him as his child for purposes of section 3(2) and 29 of the Law of Succession on dependency; that all the other three children of the 1^st respondent, L, H and T were born before the 1^st respondent and the deceased were married under the Islamic Sharia, and also before the 1^st respondent had converted into Islam; that since the 1^st respondent claimed that she cohabited with the deceased from the year 2000 and that the children were sired by the deceased although out of wedlock, the best way of determining their paternity was for a DNA to be undertaken.

34.As to what formed part of the estate of the deceased the learned Judge found that the ownership of Kwale/Diani SS/2xxx and Kwale/Diani SS/2xxx being joint tenancy between the deceased and the 3^rd respondent, ownership should be determined before the Environment and Land Court (ELC); that in the circumstances, the two properties be excluded from the list of assets for distribution; and that upon conclusion of the ELC case, parties be at liberty to seek inclusion of the portion that the ECL may award to the estate.

35.As for the liabilities, the learned Judge found that none against the estate.

36.In the end, the learned Judge directed that the estate be shared out in accordance with the Islamic sharia law with the specific details being worked on by the Chief Kadhi after the DNA results are submitted; and that a fresh grant be issued jointly to the appellant and 1^st respondent as joint administrators and final distribution of assets to a wait DNA results and Kadhi’s distribution list. Accordingly, the following declarations and orders were issued;1.A declaration and order that the appellant and the first respondent are widows of the deceased and therefore beneficiaries entitled to a share of the estate in accordance with Islamic sharia law2.That the 3^rd respondent’s marriage to the deceased is null and void for lack of capacity to get married to the deceased hence not a widow to the deceased and therefore not a beneficiary.3.The children of the appellant known as ASJM (Son), AS JM (Son), BSJM (Son) and MSJM (Daughter) being children born within wedlock are heirs hence beneficiaries to the estate entitled to a share in accordance with the Islamic sharia law4.The child known as SSJHK is not a beneficiary of the estate herein as he is not a recognized heir nor was he a dependant5.The fate of the three children sired by the 1^st respondent and the 3^rd respondent whose paternity is in dispute shall be subjected to a DNA test after extracting samples from their bodies and compared with those extracted from the bodies of at least two of the appellant’s children whose paternity is not in dispute.6.For avoidance of doubt, the children to be subjected to DNA test are H SJ HK (child to the 3rd respondent), LSK, TSA K and H K (children of the 1^st petitioner)7.Properties comprising the estate and subject to distribution in accordance to Islamic sharia law includea.Apt 5 Block A on LR No xxx/2xxxxb.LR No 8xxx original No 5xxx/xx/I/MNc.Kwale/Ukunda/3xxxd.4 houses on Kwale/Ukunda/3 xxxe.Kwale/Ukunda on Plot 3xxx [Particulars Withheld] gas stationf.Kwale/Ukunda Plot 3xxx and 2 houses Diani Msikitinig.1 house on Plot 3xxxh.Plot No xx/xxx/MN Mtwapa Kilifi County together with kerosene tanki.xxN/xxx/2xxx 3 housesj.Lorry Mitsubishi Fuso KBP xxx Sk.Toyota KBP xxx Hl.Cash and Carry Supplies business on Plot No xx/xxx/MN Mtwapa.m.Barclays account No xxxxxx under [Particulars Withheld] gas stationn.Barclays account xxxx(3047 local business account.o.Barclays current account xxxxxxp.First Community account xxxxxxq.DTB 01 Blue gas station account Noxxxxxx Blue jay gas stationr.Imperial bank account xxxxxx for Salim and Son Investment account.s.KCB account xxxxxx SJMt.Cooperative bank account xxxxxx Executive current account8.Parties to agree on which of the two children of the objector will donate DNA samples for Examination before a mutually agreed laboratory9.Grant of letters of administration intestate made in favour of the objector, 1^st petitioner and the 3rd respondent jointly and later to the public trustee is confirmed and a fresh grant do issue to the first petitioner and objector jointly.10.Parties to pursue the claim over ownership dispute in respect of plot numbers Kwale/Diani SS/2xxx and 2xxx before ELC11.This being a family matter each party to bear own costs12.Mention on 3^rd May 2022 for confirmation on compliance with order (8) above and further directions.

37.Aggrieved by the said decision the appellant preferred this appeal while the 3^rd respondent filed a cross appeal. We heard this appeal on the court’s virtual platform on June 7, 2023 during which the appellant appeared in person while learned counsel, Mr Magiya, appeared for the third respondent. Though counsel for the 1^st and 2^nd respondents were served, there was no appearance for them. Nevertheless, they had filed their written submissions which were on record.

38.The appeal was based on the grounds that the learned Judge erred in his finding regarding the validity of the marriage between the deceased and the 1^st respondent on account of discrepancy in the names of the marriage certificate of the deceased and the 1^st respondent and in his holding that this was a technicality that did not affect the validity of the marriage; that the learned Judge disregarded the testimony of the appellant’s witnesses 2 to 4 on the validity of the marriage certificate between the deceased and the 1^st respondent; that the learned Judge disregarded the fact that the deceased relied on a non-existent name Salim Juma Kitendo to enter into a marriage with the 1^st respondent; that the learned Judge disregarded the position of Islamic law on illegitimate children and the fact that the deceased’s estate falls under Islamic Law; and that the learned Judge erred in his direction regarding the propriety of the DNA test on the 1^st and 3^rd respondents children to prove paternity.

39.On her part the 3^rd respondent’s cross-appeal challenged the learned Judge’s finding that the 3^rd respondent’s marriage with the deceased was null and void for want of capacity and for finding that the 3^rd respondent was not a widow of the deceased and therefore not a beneficiary to the deceased’s estate; and that he further erred in directing that the 3^rd respondent’s and the 1^st and 2^nd respondents’ children be subjected to DNA test and the samples compared with the samples from the appellant’s children to establish paternity. In her submissions which she orally highlighted, the appellant identified 5 issues which were dealing with the validity of the conversion certificate; the validity of the marriage between the deceased and the 1^st respondent; the proof of forgery of the marriage certificate between the deceased and the 1^st respondent; the conclusivity (sic) of the DNA test between siblings to prove paternity; and the consistency of the judgement with Islamic Law.

40.In respect of the 1^st issue, the appellant cited AOO v HAS [2015] eKLR and RB & GO v HSB & ASB [2014] eKLR for the requirement of a valid conversion certificate as at the time of the 1^st respondent’s marriage to the deceased; and that the discrepancies in names on the conversion certificate rendered the certificate as illegal and could not be relied upon. In the former case, it was held that change of religion, per se, does not convert a marriage from one to another since the change of marriage is a legal process and the conversion cannot be equated to change of religion. In the appellant’s view, the learned Judge erred in finding that a valid marriage can be borne from a document that is marred with illegality and fraud.

41.On the second issue, the appellant relied on section 11 of the Marriage Act and the Kadhis Court case of SMH v RHH [2015] eKLR for the proposition that in the absence of a conversion certificate, there could be no marriage between the 1^st respondent and the deceased; that the discrepancies go to the root of the identity of the contracting parties as the 1^st respondent had multiple identities. According to the appellant, while the marriage certificate indicates the wife as Rose Faith Mwawasi (Warda Mwawasi), the 1^st respondent’s conversion certificate reveals her adopted name as “Rubi”. It was further submitted that at the time of the alleged marriage, the deceased’s name, Salim Juma Kitengo, did not exist. The learned Judge was faulted for finding that these discrepancies were mere technicalities. In the absence of proof of conversion, it was submitted that there was no valid marriage certificate between the deceased and the 1^st respondent.

42.In respect of the 3^rd issue, the court was assailed for ignoring the criminal charge against the 1^st respondent for forgery of documents; that the court ignored the expert opinion of the Civil Registrar officer and the DCI officer touching on the validity of the 1^st respondent’s marriage certificate and the forged birth certificate. Based on Shah v Shah [2003] 1 EA 290 and Kimani v R [2000] 2 EA 417, it was submitted that the evidence of an expert ought not to be ignored.

43.In respect of the 4^th issue, it was urged, based on the case of EMM v IGM & Another [2014] eKLR, that DNA testing between siblings is unreliable and that only blood samples taken from the person whose paternity is in issue and the father or the mother are deemed reliable. On the 5^th issue, cited was the case of Ishmael Juma Chelanga Deceased [2002] eKLR for the proposition that it was a disregard for Islamic law to permit illegitimate children to inherit the deceased’s estate.

44.As regards the cross appeal, it was submitted that the learned judge correctly found that the 3^rd respondent lacked capacity to marry the deceased under Islamic Sharia Law; that given that the 3^rd respondent had no capacity to marry the deceased, any marriage was void and the child was born out of wedlock and therefore not entitled to inherit in Islam; that the issue of inheritance ought to be determined under Islamic Sharia; and that there was no evidence of dependency on the deceased under section 3 and 29 of the Law of Succession Act.

45.Although at the hearing of this appeal, the 3^rd respondent’s counsel had filed her submissions, on an oral application by the appellant, the same were expunged from the record on account of late filing and service on the appellant. Accordingly, the appellant’s learned counsel, Mr Magiya addressed us orally. According to learned counsel, the 3^rd respondent married a foreigner who deserted her for over seven years having returned to Italy with the children; that the 3^rd respondent converted to Islamic faith; that once one converts to Islam, the doctrines of Islamic Law apply and that the 3^rd respondent, now a Muslim was free to marry the deceased, also a Muslim; that the 3^rd respondent was a dependant of the deceased and that they lived together and invested together as husband and wife; that the direction that the issue of paternity be based on samples taken from the children without taking samples from the deceased may not be conclusive; and that the 3^rd respondent and her children be recognised as beneficiaries to the estate of the deceased.

46.It was submitted on behalf of the 1^st and 2^nd respondent that the appellant did not prove that the 1^st respondent was not a wife of the deceased; that there was evidence of the 1^st respondent’s cohabitation with the deceased, her conversion to Islam and a marriage certificate; that the 2^nd respondent witnessed the marriage between the deceased and the 1^st respondent; and that the appellant did not disprove this evidence as some of the documents relied upon by the appellant were never produced as evidence in the case; that the appellant admitted that the appellant did not know where the deceased was staying when in Kenya; that the appellant failed to call the Kadhi who presided over the marriage to confirm that he was misled in doing so; that there was an explanation regarding the discrepancy in the name of the 1^st respondent in the marriage certificate; that the 1^st respondent proved to the required standard the existence of the marriage by long cohabitation and finally a marriage under Islamic Law. In support of her case, the 1^st respondent relied on SMK v RHH [2015] eKLR.

47.According to the 1^st and 2^nd respondents, having proved the existence of the marriage between the appellant and the 1^st respondent, since the 1^st respondent’s children were born during the cohabitation between the appellant and the 1^st respondent, it follows that the children of the 1^st respondent were the deceased’s children and therefore there is no need for DNA sampling on them. Based on LNW v Attorney General & 3 othe rs [2016] eKLR, it was submitted that it was proper for the children of the 1^st respondent to obtain birth certificates in the names of the deceased who was their father. In support of their submissions, the 1^st and 2^nd respondents relied on CKC & an other v. ANC [2019] KLR, where the court held that the mere fact that children are born out of wedlock where the provisions of articles 24(4) and 170(5) of the Constitution have not been satisfied does not deprive them of their right to inherit from the estate of their deceased father.

Analysis and Determination

48.We have considered the evidence on record, the written and oral submissions by and on behalf of the parties to this appeal and and the authorities cited.

49.This being the first appeal, This being a first appeal, we are mindful that the duty of this court as set out in the decision of Selle & Another v Associated Motor Boat Co. Ltd & others [1968] EA 123 is to reconsider the evidence, evaluate it and draw our own conclusion of facts and law, and we will only depart from the findings by the trial court if they were not based on evidence on record; where the said court is shown to have acted on wrong principles of law as was held in Jabane v Olenja [1968] KLR 661, or where its discretion was exercised injudiciously as held in Mbogo & another v Shah [1968] EA 93.

50.The issues falling for determination before us in this appeal are whether the learned judge was correct in his finding that the 1^st respondent was validly married to the deceased at the time of the deceased’s death; whether the 1^st respondent’s children were the children of the deceased; whether or not children born out of wedlock are entitled to benefit from the estate of their deceased father; whether the 1^st respondent and her children were entitled to benefit from the estate of the deceased; whether it was proper for the learned judge to direct that in determining the paternity of the children whose paternity was in dispute samples be taken from the said children and the children of the appellant; and whether the 3^rd respondent and her children were entitled to benefit from the estate of the deceased.

51.On the first issue, the appellant’s case is that the 1^st respondent did not prove that she was married to the deceased. This submission was based primarily on the discrepancies in the names of the 1^st respondent appearing in the certificate of conversion and the marriage certificate between her and the deceased. According to the 1^st respondent before her marriage to the deceased, there was a long period of cohabitation between the two from 2000 till 2011 when the 1^st respondent converted from Christianity to Islam and was given the name Rubi Imani Mwawasi. However, at the time of the solemnisation of their marriage, the presiding officer insisted that the 1^st respondent be given a Swahili name and as a result she was given the name RFM (WM) by the deceased in the presence of her mother (Jully W), the 2^nd petitioner and one James Bosire as witnesses. This piece of evidence was confirmed by the 2^nd respondent. There was no evidence to challenge this evidence and the learned trial judge was satisfied with that explanation. This court (Apaloo, JA, as he then was) in Kiruga v Kiruga & anot her [1988] KLR 348, while dealing with what amounts to proof, cited Watt v Thomas [1947] AC 484; Peters v Sunday Post Ltd [1958] EA 424 and expressed itself as hereunder:“The word “proof”, as a legal concept, is not pre-ordained and has no objective existence, discoverable either by logic or analysis. It is merely the conclusion that the tribunal draws on any given set of facts or evidence. If the evidence is available and accepted, unless the law directs that a certain fact should be “proved” in a certain way, it cannot be the proper province of an appellate court merely to read that evidence and hold “it is not proved”. That really is another way of saying it is not persuaded by evidence. But the tribunal that needs to be persuaded, is the tribunal of fact to which the evidence is given not one which merely reads it in print. The only suggestion of the trial Judge having misdirected himself was on the onus of proof; but the trial Judge, quite rightly, makes no reference to the onus of proof, for, as often pointed out, no question of the burden of proof as a determining factor of the case arises on a concluded proof, except in so far as the court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question will arise as to which party has to suffer thereby. The trial judge came to a definite conclusion on the evidence and no question of onus did or could arise. An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to be plainly wrong. It is a strong thing for an appellate court to differ, from the finding, on question of facts, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses. An appellate court has indeed the jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon evidence should stand. But this is jurisdiction, which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

52.We have ourselves subjected the record to scrutiny and we are unable to hold that the finding by the learned trial judge regarding the explanation for the discrepancies in the names of the 1^st respondent and the deceased at the time of the marriage was wrong. That explanation was plausible and we cannot interfere with it.

53.In this case there was unchallenged evidence of long cohabitation between the 1^st respondent and the deceased. The evidence of the appellant seemed to support that fact in her admission that she did not know where the deceased used to stay, sometimes for long period, whenever he visited Nairobi. There was evidence of the 1^st respondent’s conversion to Islam and subsequent solemnisation of her marriage with the deceased culminating into the issuance of a marriage certificate. In those circumstances there is no basis upon which we can interfere with the findings by the learned judge that there existed a valid marriage between the 1^st respondent and the deceased’s at the time of the deceased’s death.

54.According to the appellant, the court ought to have taken into account the issue of criminal proceedings surrounding the forgery of the marriage certificate between the 1^st respondent and the deceased as well as the discrepancies in the birth certificates of the 1^st respondent’s children. Whereas this submission was based on the testimonies of the appellant’s witness numbers 2 and 3, there was no evidence regarding the outcome of the said proceedings. The standard of proving an offence of forgery is very high and such a finding cannot be based on merely the opinion of an investigating officer. In the absence of a finding by the court on that issue, the learned trial judge cannot be faulted for not taking it into account. Heavy weather was placed on the evidence of the registrar as being an expert whose evidence ought to have swayed the learned judge in arriving at his decision. We are unable to agree that the evidence of the registrar was an expert opinion evidence. It was simply factual evidence that was subject to belief by the court. In any case this court gave guidance to the place of expert opinions in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2007] 1 EA 139 where it held that:“Like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”

55.Therefore, while due deference ought to be given to expert opinion, such opinions are not necessarily binding on the court.

56.In his judgement, the learned judge found that S, the eldest child of the 1^st respondent was born before the 1^st respondent and the deceased started cohabiting and therefore was not entitled to benefit from the deceased’s estate. However, he found that the other three children, L, H and T though born before the formalisation of the marriage between the deceased and the 1^st respondent, were born during their cohabitation. In order to determine their paternity, he directed the DNA samples be taken. We shall come to the issue of DNA sampling and the status of the said children shortly. As regards, S, suffice it to say that there is no cross-appeal challenging the learned Judge’s findings that he was neither a beneficiary nor a dependant of the deceased. We shall say no more on that aspect.

57.It is however, the appellant’s case that children born out of wedlock are not entitled to benefit from the estate of their deceased’s father under the Islamic Law and that the learned judge erred in not taking into account that fact. We wish to refer to article 27(1) to (5) of the Constitution which provides that:1.Every person is equal before the law and has the right to equal protection and equal benefit of the law.2.Equality includes the full and equal enjoyment of all rights and fundamental freedoms.3.Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.4.The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.5.A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

58.The operating words are that “the State shall not discriminate directly or indirectly against any person on any ground”. By employing the word “including”, it shows that the examples set out are not conclusive and therefore it is appreciated that other grounds of discrimination may exist. In our view, if children born during the subsistence of a marriage are entitled to benefit from the estate of their deceased father, to hold that those children born out of wedlock are not to benefit from the same estate would amount to unfair and unjustified discrimination. In Peter K Waweru v Republic [2006] eKLR discrimination was defined in the following terms:“…Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to…restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description…Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex…a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”

59.Similarly, in Andrews v Law Society of British Columbia (1989) 1 SCR 321, Wilson J., defined discrimination as a:“distinction which whether intentional or not but based on grounds relating to personal characteristics of individual group (which) has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.”

60.In Minister of Finance v. Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) (Van Heerden) para 27 it was held that:“It is . . . incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution. In the assessment of fairness or otherwise a flexible but ‘situation-sensitive’ approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society.”

61.In this case we have been urged by the appellant to uphold an Islamic Law that provides that children born out of wedlock are not entitled to benefit from the estate of their deceased’s father. No rational justification has been placed before us and we are unable to find any to warrant creating a distinction between such children when it comes to their entitlement to the estate of their father. To deny children born out of wedlock the benefit which accrues to other children born in wedlock on the basis of the alleged “sins” committed by their parents, in our view cannot be justified since it would mean that this Court would be adopting “hurtful discrimination and stereotypical response” to a clear case of discrimination. It is our view that the rights of the children must be distinguished from marital issues. Whereas a man and a woman who enter into a relationship that is not legally recognised as husband and wife, such as where there already exist a monogamous marriage by one of them, may not lay claims as regards the estate of the other upon death, the issues of such relationships ought to be treated differently from their parents. This, in our view, comes out from a reading of article 53(1)(d) and e which provides that:53.(1)Every child has the right––d.to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;e.to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and

62.It is our view that culture that is harmful to a child in the sense that it denies such a child his or her otherwise right to parental care and protection on the ground of marital status of the father and the mother cannot be countenanced. We are persuaded by the decision of this Court in CKC & another (Suing through their mother and next friend JWN) v ANC [2019] eKLR where it was held that:“A reading of article 24(4) together with article 170(5) of the Constitution shows strict conditions that must be satisfied before a person can invoke Islamic law to derogate from or limit the right to equality and freedom from discrimination. First, the derogation must be “ only to the extent strictly necessary”. Second, the derogation must relate to matters of personal status, marriage, divorce and inheritance. Third, the persons involved must be persons who profess the Muslim faith. Fourth, as regards jurisdiction of the Kadhi’s court, all the parties to the dispute must profess the Muslim faith and submit to the jurisdiction of the Kadhi’s court. In our opinion, the above conditions must be strictly satisfied before Islamic law, which the Kadhi’s court and the High Court found does not recognize the appellants as S’s heirs purely on the basis of their status as “illegitimate” children born out of wedlock, can apply to them. That the appellants were born out of wedlock following a prolonged and open relationship between S and J is not a fault of theirs. The fault, if it be a fault at all, falls squarely on the shoulders of S and J. It is common ground that the appellants do not profess the Islamic faith and have not submitted themselves to the jurisdiction of the Kadhi’s court. Professing the Islamic faith and voluntarily submitting to the jurisdiction of the Kadhi’s court are absolute preconditions for application of Islamic law to the appellants. If it were otherwise, the words “in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts” in article 170(5) of the Constitution would be utterly meaningless. We cannot adopt an interpretation of the Constitution that renders otiose some of its clear provisions. Those preconditions have not been satisfied in this appeal and therefore the principles of Islamic law cannot be applied to the appellants. In addition, we are satisfied that the interpretation that we have adopted in this appeal is the one that most favours the enjoyment of the right to equality and freedom from discrimination by the appellants and also develops the law so as to give effect to that right and fundamental freedom as demanded by the Constitution. It is further an interpretation that promotes the purposes, values and principles of the Constitution and advances human rights and fundamental freedoms in the Bill of Rights.”

63.We are further persuaded by the position of the Indian Supreme Court in Revanasiddappa & ano ther v Mallikarjun & Others Civil Appeal No 2844 of 2011, a decision made on March 31, 2011 in which the court expressed itself as hereunder:“We are constrained to differ from the interpretation of section 16(3) rendered by this court in Jinia Keotin and, thereafter, in Neelamma and Bharatha Matha in view of the constitutional values enshrined in the Preamble of our Constitution which focusses on the concept of equality of status and opportunity and also on individual dignity. The court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationships has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage…It is well known that this court cannot interpret a socially beneficially legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children.”

64.In arriving at its decision, the Indian Supreme Court referred to article 37 of that Country’s Constitution which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. In our case, article 10(1) of the Constitution provides that the national values and principles of governance in the article bind all State organs, State officers, public officers and all persons whenever any of them, inter alia, applies or interprets the Constitution or any law. There is no doubt that judges, being state officers and the courts, being state organs, in their task of applying and interpreting the Constitution and the law, are bound by the said Article. Those principles include, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.

65.It is therefore clear that our decisions must reflect the said values and principles which include non-discrimination and protection of the marginalised. Consequently, we find that any cultural practice that discriminate against children on the ground of their parents’ marital status must be abhorred. In the premises we have no reason to depart from the decision of the learned trial Judge on this issue. We find that 1^st respondent and her children born from the relationship between the deceased and the 1^st respondent are entitled to benefit from the estate of the deceased.

66.As regards the position of the 3^rd respondent, it is clear that she was already married at the time that she purported to have entered into a marriage with the deceased. That marriage had not been dissolved. The 3^rd respondent seems to be of the view that since her former husband had deserted her for a period of more than 7 years, she was entitled to treat that marriage as dissolved. No authority was cited for this rather robust submission and we are not aware of any such authority. We have no difficulty in finding that the purported marriage between the deceased and the 3^rd respondent during the pendency of her earlier marriage was null and void based on lack of capacity on her part. Accordingly, the learned judge was right in finding that the 3^rd respondent was not a wife or widow of the deceased.

67.Regarding the issue of the DNA, there was no application before the learned judge for such an intrusive procedure to be taken. DNA as a procedure for determining paternity ought to very cautiously resorted to since the consequences of such a procedure on a family may be dire. While we do not find that procedure illegal, it ought to be resorted to only where a basis for it has been laid and an application made seeking that procedure. It ought not to be granted in case where none of the parties to the proceedings has sought for it unless the court finds that based on the manner in which the proceedings were conducted, the issue was open to the court to make a finding in that regard. In cases, such as in this one, where the person who is alleged to have sired the children whose paternity is disputed is dead and was buried, that procedure should be resorted to very sparingly as quite often it has the consequence of having to exhume the body of the deceased which more often than not turns out to be a futile exercise due to time lapse between the date of interment and the date of exhumation. As this court appreciated in James Apeli & Enoka Olasi v Priscilla Buluku Civil Appeal [1985] KLR 777 in which Re Matheson [1958] 1 All ER 202 was cited with approval:“The primary function of the court is to keep faith with the dead. When a man nears his end and contemplates…burial, he may reasonably hope that his remains will be undisturbed, and the court should ensure that, if reasonably possible, this assumed wish will be respected. In all these cases the court must and will have regard to the supposed wishes of the deceased. These are supposed wishes because it can rarely, if ever, happen that circumstances giving rise to the application can have been contemplated, still less discussed, in the lifetime of the deceased.”

68.The matter before the learned judge the appellant’s case was in the form of objection proceedings. In such proceedings, the burden is on the objector to prove that the proposed distribution of the estate by the petitioner is not proper or legally correct. That burden, of course, is on a balance of probabilities. Where an objector fails to prove what she set out to persuade the court to do, the court cannot, on own motion, set out to assist, as it were, by making orders geared towards the proof or disproof of the objection. In this case, it is clear that the learned judge was not satisfied that the petitioner, who was the objector had proved that the children of the 1^st respondent and the 3^rd respondent were not entitled to benefit from the estate of the deceased either as beneficiaries or as dependants of the deceased. It was in that regard that we understand his decision to direct that proof of paternity of the 1^st and 2^nd respondent’s children be by way of DNA.

69.In this case there was evidence that the children sired by the 1^st respondent and the 3^rd respondent whose paternity was in dispute and whom the learned judge directed that DNA samples be taken, notwithstanding the Islamic law, were born during the cohabitation between the deceased and the 1^st and 3^rd respondents and that the deceased treated them as his own children during the deceased’s lifetime.

70.Therefore, even if paternity was disputed, they were entitled to benefit from the deceased’s estate as dependants. In those circumstances, the issue of DNA did not arise and we find that the learned judge erred in directing that DNA samples be taken to determine paternity. In any case the mode of taking DNA samples from the children whose paternity was disputed and comparing them with those of the children of the appellant whose samples themselves had not been compared with those of the deceased was a very unsatisfactory way of determining paternity.

71.With due respect to the learned judge, the issue of DNA sampling was not raised by any of the parties before him and should not have been the basis upon which the paternity of the said children and their entitlement to the estate of the deceased should have been based. We therefore find merit in this ground of appeal, though for a different reason.

72.Save for that ground, we otherwise find the appeal unmerited.Accordingly, we allow the appeal as regards the order directing that the DNA samples of the children sired by the 1^st respondent and the 3^rd respondent whose paternity was in dispute be subjected to a DNA test after extracting samples from their bodies and compared with those extracted from the bodies of at least two of the appellant’s children whose paternity was not in dispute which order we hereby set aside. We substitute therefor an order that all the said children of the appellant, the 1^st respondent and the 3^rd respondent are entitled to benefit from the estate of the deceased either as dependants or as beneficiaries to his estate. We hereby remit this matter back to the High Court to determine the respective entitlements of the beneficiaries. The same to be undertaken by any High Court judge sitting in Mombasa other than Onyiego, J.

73.As this is a family dispute we make no order as to the costs of this appeal

74.Judgement accordingly.

DATED AND DELIVERED AT MOMBASA THIS 10^TH DAY OF NOVEMBER, 2023.S. GATEMBU KAIRU, FCIArb...........................JUDGE OF APPEALP. NYAMWEYA...........................JUDGE OF APPEALG. V. ODUNGA...........................JUDGE OF APPEALI certify that this is the true copy of the originalDEPUTY REGISTRAR

1.	Jabane v Olenja (Civil Appeal 2 of 1986) [1986] KECA 21 (KLR) (2 September 1986) (Judgment) Explained	102 citations
2.	Mbogua Kiruga v Mugecha Kiruga & another [1988] KECA 122 (KLR) Explained	72 citations
3.	Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] KECA 130 (KLR) Explained	49 citations
4.	Waweru v Republic (Miscellaneous Civil Application 118 of 2004) [2006] KEHC 3202 (KLR) (Civ) (2 March 2006) (Judgment) Explained	49 citations
5.	CKC & another (Suing through their mother and next friend JWN) v ANC [2019] KECA 354 (KLR) Followed	10 citations
6.	Apeli v Buluku [1980] KECA 39 (KLR) Explained	8 citations
7.	Joseis Wanjiru v Kabui Ndegwa Kabui & another [2014] KECA 609 (KLR) Followed	8 citations
8.	Karanja & 2 others v Karanja & another (Civil Appeal 313 of 2001) [2009] KECA 434 (KLR) (20 February 2009) (Judgment) Followed	8 citations
9.	In re Estate of Ismail Osman Adam (Succession Cause 121 of 1991) [2017] KEHC 5643 (KLR) (12 May 2017) (Ruling) Followed	4 citations
10.	In re Estate of Ishmael Juma Chelanga - Deceased (Probate & Administration 2258 of 1996) [2002] KEHC 1177 (KLR) (Family) (24 May 2002) (Judgment) Followed	1 citation

1.	Constitution of Kenya Interpreted	44628 citations
2.	Law of Succession Act Interpreted	6990 citations
3.	Marriage Act Interpreted	611 citations

1.	FAAF v RFM & 2 others (Petition E035 of 2023) [2025] KESC 45 (KLR) (30 June 2025) (Judgment) Mentioned	2 citations
2.	In re Estate of Joram Njuya Wamiya (Deceased) (Succession Cause 100 of 2002) [2025] KEHC 4681 (KLR) (9 April 2025) (Ruling) Explained

Date	Case	Court	Judges	Outcome	Appeal outcome
30 June 2025	FAAF v RFM & 2 others (Petition E035 of 2023) [2025] KESC 45 (KLR) (30 June 2025) (Judgment)	Supreme Court	I Lenaola, MK Ibrahim, MK Koome, N Ndungu, PM Mwilu, SC Wanjala, W Ouko
10 November 2023	↳ FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR) (10 November 2023) (Judgment) This judgment	Court of Appeal	GV Odunga, P Nyamweya, SG Kairu	Allowed in part
10 November 2023	FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR) (10 November 2023) (Judgment) This judgment	Court of Appeal	GV Odunga, P Nyamweya, SG Kairu
25 March 2022	↳ In re Estate of Salim Juma Hakeem Kitendo (Deceased) [2022] KEHC 862 (KLR)	High Court	JO Nyarangi
25 March 2022	↳ Succession Cause 200 of 2015	High Court	JN Onyiego		Allowed in part

FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR) (10 November 2023) (Judgment)

FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR) (10 November 2023) (Judgment)

Collections

Cited documents 14

Judgment 11

Act 3

Documents citing this one 2

Judgment 2