The High Court has warned the family of late Cabinet Minister Simeon Nyachae against attempts to delay a case in which an American-based woman in seeking part of the former Abagusii politician's Sh2 billion estate.
Margaret Chweya and her three children Rodney Chweya, John Paul Nyandusi and Patricia Moraa have sued Charles Nyachae, Angela Nyachae and Eric Maina Nyachae who are the administrators of the senior Nyachae's estate estimated to be worth over Sh2 billion.
The woman says the Nyachae family has left her out of the inheritance yet she was Nyachae's wife and that they had three children together.
While the hearing of the matter is scheduled to continue on January 23, 2024, parties were Thursday in court before Justice Eric Ogola where the Nyachae family tabled its consent for DNA testing to determine the paternity of Chweya's children.
Through lawyer George Muchiri, the family presented a consent with 23 paragraphs, and it was immediately opposed by the lawyers representing Chweya and her children.
It is that long consent document that also appeared to irk Justice Ogola who reprimanded the Nyachae family lawyer.
"You cannot purport to bring a consent which itself will enter into hearing. A consent on DNA cannot, in all fairness, have 23 paragraphs. This in itself is another petition. I really don't know what you had in mind when you brought this kind of consent to court," Justice Ogola said.
The judge's position was that the Nyachae family was trying to create another case within the same case so as to have the matter take decades in court before a judgment is delivered.
"I have a feeling that this kind of consent is meant, actually, to delay these proceedings because the consent itself will be starting another hearing. We'll forget about the main hearing, go to the consent which will take another three years. I think that's where we are heading," Ogola said.
The judge said the lawyer could make submissions about the DNA testing in only 10 minutes and have the court issue directions in another 20 minutes if the family was interested in a faster hearing of the matter.
But Muchiri defended the consent, saying it was meant to safeguard the issue of testing and the results emanating thereof.
He said the court could give directions after interrogating the consent given that even the respondent had not filed responses to the consent itself.
However, the judge disapproved of that argument.
"I think even the respondents can be justified. This kind of consent is an intention to delay this matter, pure and simple," Justice Ogola said.
The judge reminded the lawyer of his experience at the family division of the High Court where cases can take even up to four decades before they are determined.
"Mr Muchiri, we've been in these courts for sometime now and we know how these estates run. These estates are brought to court to live in these courts forever and these are the tactics which are used by parties to delay these matters to run for 10 years, 30 years , 40 years and that's where we are heading in this matter."
While Chweya's lawyer Danstan Omari asked the court to allow the substantive hearing to proceed on January 23 as scheduled and that the issue of DNA be dealt with last, the court said DNA testing would also help if conducted early enough.
"It will help us save court's time if we can resolve the issue of beneficiaries through DNA but I don't agree with Mr Muchiri in proposing a consent of 23 paragraphs," Ogola said.
The paragraphs mean there are 23 distinct issues upon which the parties must agree on for the tests to be conducted.
The judge said it was impractical that the parties would agree on all of them.
"It is like in a matter where you are accepting to have 23 issues for determination and one issue, if on the negative, is enough to dispose off the matter. So where do we end?"
Chweya was given 10 days to respond to the consent while the court directed hearing of the main petition to proceed on January 23 as had been scheduled.