• Jacob Ochola and a woman codenamed JNL claim they were sired by Kibaki
• The former President left them out of his will, naming four children minus them
Image: ENOS TECHE/FILE
The High Court has set June 6 for the hearing of an application to have former President Mwai Kibaki's remains exhumed for DNA analysis in a case where a man is claiming shares in the former politician's multibillion-shilling estate.
The move follows the collapse of talks to have the matter resolved out of court.
In the case, Jacob Ochola and a woman codenamed JNL moved to court claiming a stake in Kibaki's wealth on the argument that they were sired by the former President. They have since asked the court to order DNA tests to show they are children of the former head of state.
They want to be recognised as his children and beneficiaries of his estate.
Ocholla and JNL want the court to order a sibling or paternity DNA test.
In the first prayer, they want the court to direct them together with Kibaki’s four children be subjected to a DNA test to establish whether they are children of the late President.
The children are Judy, James Mark Kibaki, David Kagai Kibaki and Anthony Andrew Githinji Kibaki.
In the second and alternative prayer, they want the court to order the exhumation of Kibaki’s body for extraction and collection of samples to be used in a DNA paternity test.
In October last year, the parties asked Justice Eric Ogola to give them time to resolve the issue out of court.
Those talks appeared to have made no progress by December as the parties asked the court for more time yet again to seek an out-of-court settlement.
Ogola directed that they report back to court on any progress made by February 29.
When the matter came up in court on Thursday, Ocholla's lawyer Morara Omoke said the talks had collapsed. He asked the court to set a hearing date to dispense with the matter of DNA.
However, lawyers acting for the Kibaki family sought more time to put in further affidavits on the issue before the matter can be heard.
But the judge felt the lawyers were employing delaying tactics and directed that the case be heard on June 6 with no option for adjournment.
"I have given you the blanket opportunity to file anything on earth. There will be no further adjournment on the hearing on the DNA applications," Ogola said.
"All applications concerning DNA shall be filed and responded to, and parties are at liberty to file responses or supplementary affidavits. Hearing on June 6 with no option for adjournment."
Lawyer Daniel Musyoka for the Kibaki family had asked for time to file expert reports on the matter, but the court said everything be done before June 6, when hearing will take place.
"This matter will be heard whether the issues are responded to or not. There will be no further adjournment," Justice Ogola said during the virtual session on Thursday.
In the matter, Ocholla is claiming to be Kibaki's firstborn son. He and JNL are demanding that Kibaki's body be exhumed to allow for DNA tests, insisting it is the only way to confirm he was their biological father.
Ocholla claims there are no existing male siblings who can assist in getting the right DNA to ascertain that he is Kibaki's son.
To buttress his argument, the 63-year-old man has attached in his affidavits a report prepared by human pathologist Dr Zakayo Limili, who stated that Ocholla’s and Kibaki’s phenotypic features suggested that the two are related.
The pathologist said Kibaki’s and Ocholla’s noses, foreheads, eyelids and lips resemble.
Kibaki had listed his four children Judy Wanjiku, Jimmy Kibaki, David Kagai and Anthony Githinji as heirs to his estate.
The children have since opposed attempts to exhume Kibaki's body, saying subjecting the body to DNA testing will violate their privacy.
Judy, who swore the affidavit on behalf of her siblings, also said the order to exhume Kibaki's remains cannot be whimsically granted since he was buried following a state funeral.
She added that the interment was a matter of national and international importance, which was financed by public funds.