WHO IS A CHILD FOR THE PURPOSES OF THE LAW OF SUCCESSION ACT: The relevance of DNA in determining the right to inherit

A.?? Introduction

There is a common and somewhat true saying that “only the woman knows the man who fathered her child”. Justice Kiage of the Court of Appeal[1] aptly captured this way, “Children are mothers’ babies, but fathers may-bes”.

In this article, the authors discuss the legitimate place of people who emerge after the passing on of their alleged biological father to stake a claim to his estate. The authors examine whether they are children for purposes of Law of Succession Act[2] (the Act), regardless of whether they deceased sired them. ?They also explore the law to establish whether, in the event they inherited from their step fathers, they can also inherit from the supposed biological fathers.

B.?? Historical perspective to present

? i.?? African perspective

Under most African cultures, a child born out of wedlock was considered part of the family with the right to inherit in equality with the other children. Such children included those born before the woman married the man and even those born after marriage irrespective of any doubt that the man is the biological father. Conversely, children sired by men out of wedlock were not deemed to be part of the man’s family unless the man subsequently marries the woman or brings the child home to be part of his family. Therefore, if the woman marries another man, the man marrying her becomes the father and the child would have equal rights as the other children sired by him. No wonder the African proverb, “He who marries your mother is your father”.

This gave families some sense of stability. For the man, he was better off assuming to be the father even if he suspected he was not. He had no way of knowing unless, for instance, he was at war at the time of conception and birth. As the saying goes, what you don’t know does not hurt. For the woman, she was safe in the knowledge that whatever the man does out there remains there.

? ii.?? English historical perspective

Under the ecclesiastical law of England, children of adulterous relationships were bastards who could not inherit property. The common law, however, had a strong presumption that a child born to a married woman was legitimate, even if the child was the result of an adulterous affair.? This was aptly captured by the saying “Whosoever bulleth my cow, the calf is mine.” In other words, the child was deemed to be legitimate as long as the husband was not impotent and he was in the kingdom at any time at all during the pregnancy. The test was abandoned in 1732, “on account of its absolute nonsense”.[3]?

?? iii.?? What changed?

All was well until 1984 when Sir Alec Jeffreys, a British geneticist, upset the apple cat by discovering the technique of DNA testing to determine a genetic “fingerprint” in a laboratory in the Department of Genetics at the University of Leicester, England. Since then, the tide has shifted to children sired by wealthy men with women who are not their wives.

? iv.?? The present

Arguably, this DNA thing is every wealthy family’s second waking nightmare; the first one being the passing on of the man.? This because, immediately the man passes on, people claiming to be the man’s children, emerge seemingly from the blues, sometimes with their mothers in tow, demanding to participate in burial arrangements. This is usually the start of laying claim to a share of his property. Sometimes, they appear after burial after the family applies for grant of letters of administration or probate.

C.?? THE LAW

Section 118 of the Evidence Act[4] provides that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, is conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This definition seems to be in consonance with the long-held tradition that fatherhood is presumed if the man and the woman are married to each other.

The Law of Succession Act governs all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of the Act and to the administration of estates of those persons.[5] Section 3(2) of the Act defines a child thus:

“References in this Act to ‘child’ or ‘children’ shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”

Section 26 of the Act provides for Provision for Dependants. ?It states that, where a person dies after the commencement of the Act, and so far as succession to his property is governed by the provisions of the Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate.[6] The Act then defines dependant as follows:

“For the purposes of this Part, ‘dependant’ means—

a)??? the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;…”[7]

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a.?? What is the meaning of these provisions?

The answer to this question lies in the answer to the following questions:-

i.??Does a man become a father of a child just because he is the biological father?

ii.?Conversely, does a man who has brought up a child as a father cease to be one if he is not the biological father of the child?

iii.?Can a child inherit from two fathers, the father who brought up the child as his own and the biological one?

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i.?? Does a man become a father of a child just because he is the biological father? And does a man who has brought up a child as is own cease to be one if he is not the biological father of the child?

Where a man takes up parental ?responsibilities over a child, he cannot run away from them once he discovers that he is not the biological father. The High Court (Muchelule J) in EKTM v ECC [2022] eKLR found that because of the 14 years that the appellant step father had related with the child and provided for her in all ways, and given her his name, he should be considered to have assumed responsibility over her in the same way a father would.

The High Court in ZAK & another v MA & another (Petition 193 of 2011) (Justice Mumbi Ngugi (as she then was)) held that it would be an affront to morality and the values of the Constitution for a party who has had a relationship with a child akin to that of a father or mother to disclaim all responsibility and duty to maintain the child when he or she falls out with the parent of the child.

It can be inferred from these two cases that paternity is not confined to biological relations. The true test appears to be the voluntary assumption of parental responsibility by a man. While one may argue that the above cases related to child maintenance, a keen reading of section 3(2) of the Law of Succession Act, “…in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility”, reveals that the principle that, the true test is assumption of parental responsibilities rather than biological relationship permeates. Consequently, a child for purposes of succession is one who had been expressly recognized or in fact accepted as a child of the deceased or one for whom the deceased had voluntarily assumed permanent responsibility.

What perhaps needs to be emphasized is that a child under the Children’s Act for the purposes of maintenance is not the same as a child under the Law of Succession Act for purposes of inheritance. Under the Childrens Act, a “child” means an individual who has not attained the age of eighteen years. The Childrens Act was enacted to give effect to Article 53 of the Constitution which provides for the rights of a child, which include the right 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. This is what informs the practice of DNA testing when the alleged biological father denies being so. What should be emphasized is that the responsibility generally ends after the child becomes of age. It is therefore doubtful if such child can claim to inherit from the biological father if the father, who did not dies after the parental responsibly has ceased by operation of the law unless the child bring himself within the definition of a child under the succession Act.

In re Estate of SMM’I (Deceased) [2019] eKLR, Mabeya J allowed DNA testing on the siblings and observed that,

“...the applicant has been able to establish a link with the deceased. His mother tenaciously held firmly that she gave birth to him through the deceased. ..., the truth is supposed to be the guiding principle in order to arrive at fairness. ...

The applicant is craving that he be recognized as a child of the deceased and be allowed to partake in the distribution of the deceased’s vast estate. He alleges that the deceased recognized him as such in his lifetime. The respondents on the other hand retort that the applicant is a stranger who wants to squeeze them unfairly in their entitlement to their deceased husband and father.

The view this court takes is that, if the truth is not unraveled, an otherwise entitled child, whether illegitimate or not, of the deceased will forever be disinherited or a stranger will wrongly be permitted to take a share in the deceased’s estate thereby prejudicing the real beneficiaries thereto”

In re Estate of NKM (Deceased) [2021] eKLR, Onyiengo J ordered DNA through extraction of samples from the two sons of the petitioner and matching with samples of the objector’s disputed children. What is clear is that from both decisions is that the Judges were not referred to the above definition of a child under the Act. Once more, the definition of a child under the Act was not examined.

? ii.?? Can a child inherit from two fathers, the father who brought up as his own and the biological one?

Should a person inherit from the estates of the father who discharged parental responsibility over them and the man who sired them? In answering this question, reliance is had on the spirit of the judgment of the High Court in in RWM v PMM [2021] eKLR. In this case, Justice Mugure Thande addressed the scenario of two ‘fathers’ having parental responsibility over a child and found it unconscionable. She stated thus, “I find it unconscionable that a woman would seek maintenance for her child from 2 men; the biological father and another man”.

The Court in In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR also frowned on double inheritance. It saw it as double enrichment.

The spirit of the above judgments militates against double inheritance, which is in effect double enrichment. In the same way that it is unconscionable that a woman would seek maintenance for her child from two men; the biological father and another man, it is unconscionable for one to claim inheritance from two men; the biological father and another man.

iii.?? From which ‘father’ should such person inherit?

The decision of the High Court in Re Carey Kihagi Muriuki [2000] eKLR is instrumental in answering this question. The Court therein stated as follows:

But there are other classes of illegitimate children as distinct from illegitimate children born out of an invalid marriage. They could be issues of a relationship of a man and woman who do not eventually marry.? Those children would NOT qualify as dependants unless the father had recognized or accepted them as children of his own or he had voluntarily assumed permanent responsibility over them. If he does so, the children rank equally with the legitimate children by virtue of S. 3(3) of LSA and they would qualify as dependants under S. 29(a) of the LSA whether or not they were being maintained by deceased prior to his death.

The High Court in re Estate of Jairus Ratemo Nyandusi (Deceased) [2019] eKLR (Majanja J) quoted the above holding with approval and added, “We agree with the respondent that the appellant has to show a reasonable degree of permanency in the responsibility that the deceased is alleged to have voluntarily assumed over the appellant. Episodic support, as is the case here will not suffice.”

From the above cases, the authors take the view that a child should only inherit from is the man who recognized or accepted the child as his own or voluntarily assumed permanent responsibility over the person. Not the richer men of the two.

D.? CONCLUSION

The law seems to be that, where a man and woman are validly married to each other, the children are conclusively presumed to be his children unless there is evidence that they had no access to each other at the time of conception. In the same vein, if the man and the woman are not married to each other, the child born does not have the right to inherit unless the man? expressly recognized or in fact accepted the ?child as? his own or ?voluntarily assumed permanent responsibility. In both scenarios, the focus is not whether, in fact, the man is the biological father. In other words, the law does not seem to support DNA as a means of determining whether one is a child for the purposes of succession. What is worse, there are some ‘children’ who end up inheriting from two ‘fathers’, the biological father and the one who took care of the ‘child’ as the father.?? Such conduct is an affront to morality and good conscience.

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?Authors: Daniel Musyoka and Kelvin Makau

[1] in Sylvanus Manuel Walutsachi v St. Mary’s Mission Hospital

[2] Cap 160 Laws of Kenya

[3] Did Tudor Succession Law Permit Royal Bastards to Inherit the Crown?? By Thomas Regnier

[4] Cap 80 Laws of Kenya

[5] The Law of Succession Act, Section 2(1).

[6] Section 26.

[7] Section 29.