A woman fighting for a share of her deceased father's estate has been dealt a blow after a DNA test gave a 32.7 per cent chance result that neither established nor excluded paternity. This means that the court could not determine whether or not the deceased was her father.
The DNA samples were taken from the deceased's siblings, who are the uncle and aunt of the woman identified as CWK.
The specific result of the test was that the chance of the two siblings being the paternal uncle and aunt of CWK was 32.7155 per cent, while the chance of them not being CWK was two times higher.
As the data did not support either inclusion or exclusion, a further series of medical tests was recommended, this time involving more of the deceased's close relatives to obtain more conclusive results.
High Court Judge Gregory Mutai noted that the inconclusive results of the DNA analysis did not allow the court to make a final decision on whether to revoke the grant awarded to CWK.
"From the foregoing, it is clear that the results of the DNA test, had they been conclusive, would have been conclusive," the judge said.
Justice Mutai further noted that if CWK is proven to be the deceased's daughter, the appellant and the siblings would have no claim to their brother's estate.
"Consequently, this court would revoke the grant he received. If, on the other hand, it is established that CWK is not the deceased's daughter, then she would have no claim to the estate unless she could prove with substantial evidence that the deceased had adopted her as his child.
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The deceased died in 2020 and there was a dispute over his estate between CWK and the deceased's siblings, who objected to her being a beneficiary.
Each of them filed separate probate actions in respect of the deceased's estate, both of which had Grant of Letters or Letters of Administration Intestate.
The deceased sibling, referred to in court documents as the objector, filed an application to revoke the Letters of Administration issued to CWK on the basis that they had been fraudulently obtained.
The objector also alleged that CWK had concealed certain facts about the estate from the court. The objector argued that CWK was not the deceased's daughter, was not known to members of the deceased's family and that the deceased had only five dependants, which the woman had failed to disclose in her application.
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"CWK used a fraudulent or forged death certificate to obtain the grant," the complainant argued.
The court was also told that the lower court had made another grant in respect of the same estate. CWK opposed the order to revoke the grant, arguing that although the deceased died without a wife, she was his only biological child She explained that the deceased had a relationship with her mother, who was not married to her late father.
"I had been introduced to members of the deceased's family," she said.
She gave a detailed account of the relationship between the deceased, the objector, his family and herself, and also produced a vaccination card showing the deceased's name as her father.
In response, the objector also admitted that CWK had paid for the deceased's funeral. "She paid the funeral expenses not as a family member but as a friend. She had subsequently asked for a refund of the money she had paid," the objector said. He also argued that CWK had not asked for a copy of her birth certificate to prove that the deceased was indeed her father.
To resolve the impasse, the judge ordered DNA testing. The court ordered that CWK and two of the deceased's siblings be subjected to DNA testing to establish whether or not the deceased was CWK's father.
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The purpose of the test was to determine whether the two siblings were CWK's paternal uncle and aunt, and therefore the deceased's daughter.
The court records indicate that the results obtained were inconclusive, with the data neither supporting inclusion nor exclusion of paternity.
Based on the outcome of the medical procedure, the appellant asked the court to find that the DNA results, as they stood, showed that CWK was not the biological daughter of the deceased. He requested that the allowance granted to her be revoked.
CWK responded that the DNA report was inconclusive because it did not say that she was not the deceased's daughter. She insisted that further evidence would remove any doubt about her paternity.
But Justice Mutai refused to rule in favour of the complainant on the basis of the DNA test result, which was described as inconclusive. The judge noted that the court must be extremely cautious in any case where the outcome of its determination is so obviously binary.
"There is a clear and present danger that a rightful beneficiary will be denied her rightful inheritance or, on the other hand, that an imposter will benefit," the judge said.
The judge agreed to a proposal for a second set of DNA tests with close family members in order to obtain a conclusive result. "I agree with the said proposal. I therefore find and rule that the DNA result was inconclusive. Consequently, I order that CWK, the appellant and three other known siblings of the deceased undergo DNA testing to determine whether CWK was the daughter of the deceased," the judge said.
The DNA tests will now be conducted at the Kenya Medical Research Institute (Kemri) laboratories in Nairobi.
The results will be presented to the court in June before any further orders are made.