A request for a DNA test by a woman who claims to be the daughter of the late powerful politician Mark Too will be heard in the High Court in Eldoret on September 22, Justice Erick Ogola has directed.
Justice Ogola gave the direction after the parties failed to resolve the issue outside court as earlier expected.
Ms Chepkoech Too had asked the High Court to determine her paternity, with the intention of claiming her share of Too’s vast estate.
The DNA test request followed Ms Chepkoech’s prior application in the MP's succession case, which has been pending in court since 2017.
Through her lawyer, Ms Diana Ndirangu, she claims she has the right to be included in the sharing of Too's property.
Family may be forced to exhume body
The lawyer said that if the court orders a DNA test, the Too family may be forced to exhume his body for samples to be extracted.
“From the onset of this matter, our request has been that a DNA test be conducted on the applicant against all the known children of the deceased,” Ms Ndirangu said.
“We are proposing sibling DNA as it is easier and takes less time, and if the family will be adamant, then we would rather exhume the deceased’s body than provide their samples.”
Ms Chepkoech’s resolve to take the DNA test route was informed by the position of Too’s two widows with the aim of having her paternity established scientifically.
Ms Chepkoech had reportedly made ‘extreme) demands in the mooted succession plan. That is what prompted the two widows to shelve their intended out-of-court negotiations with Ms Chepkoech.
“Our desire of negotiating with Ms Chepkoech to ascertain her status as a child and a possible beneficiary from the wealth of the deceased have failed owing to the extreme demands that have been made by her,” one of the widows revealed.
Born out of wedlock
When the succession case started, three other beneficiary subjects, including Mr Ali Mark Too, Mr Mohammed Bakari and Mr Sammy Mulili (deceased), had told the court that they were also Mr Too's children, born out of wedlock, and demanded to be included in the wealth distribution proceedings.
Mr Too's widows – Ms Mary and Ms Sophia – have already acknowledged Mr Ali and Mr Bakari as the MP's biological sons, but insisted that they did not know Ms Chepkoech.
The two widows are joint administrators of the estate.
Because of the positions taken by parties in prior hearings of the succession case before Justice Eric Ogola, Ms Chepkoech’s lawyer said a DNA test was the only remedy for solving the paternity dispute.
For a long time, other family members had objected to the DNA test.
Mr Too’s widows disputed Ms Chepkoech's DNA results tabled earlier in court by her lawyer.
Following the DNA dispute, the family cannot embark on distributing the property.
“Distribution of the estate of the deceased cannot go on until proper a DNA test of my client is determined to ascertain whether my client is a biological child of the late Mark Too or not,” said Ms Ndirangu .
“We anticipate to have another DNA test using samples of the children of the deceased. If my client is a child, then she needs to be included in the distribution of the family wealth."
Efforts by the widows’ lawyer, Prof Tom Ojienda, to hear the matter via video link were opposed by the applicant.
Died at 60
Mr Too died on December 31, 2016, at 60. He was buried at his second wife’s home at Sirikwa farm, Kapseret, next to Eldoret International Airport.
Mr Too was a large-scale farmer in dairy and cereal production, and also dealt in real estate. His property is spread across the country, with investments in Muthaiga, Lavington and Milimani in Nairobi, Nakuru, Elgon View in Eldoret and other places.
He also had huge farms in Nakuru, Uasin Gishu, Nandi and Trans Nzoia counties, among them Kabilo, Sirikwa, Chemoset, Kosirai, Kitale, Kiminda, Savani, Ngeria, Kapcheserut, Ngechek, and Kurgung.
His other properties included 10 trailers, 10 tractors, 11 vehicles, and shares in six companies.
Apart from his children allegedly born out of wedlock, his first wife, Ms Mary, had four children (Ms Elizabeth Jepkoech, Mr Moses Kiprotich, Ms Jennifer Jebet and Mr Daniel Kipchirchir), while Ms Sophia has three (Ms Sandra Jerop, Mr Kevin Kipkemei and Ms Sharon Jepchumba).