EAA (Suing as the Mother and the Next Friend of the Minor) v Republic –Through DCI –Child Protection Unit & 5 others; Police & 3 others (Interested Parties) (Constitutional Petition E033 of 2026) [2026] KEHC 8810 (KLR) (Constitutional and Human Rights) (17 June 2026) (Ruling)

EAA (Suing as the Mother and the Next Friend of the Minor) v Republic –Through DCI –Child Protection Unit & 5 others; Police & 3 others (Interested Parties) (Constitutional Petition E033 of 2026) [2026] KEHC 8810 (KLR) (Constitutional and Human Rights) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8810 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E033 of 2026 RE Aburili, J June 17, 2026 Between EAA (suing as the Mother and the Next Friend of the Minor) Petitioner and Republic –Through Dci –Child Protection Unit Respondent and Inspector General Of Police 1st Interested Party Independent Police Oversight Authority 2nd Interested Party Kenya National Commision On Human Rights 3rd Interested Party and MAM 1st Intended Interested Party SM 2nd Intended Interested Party and Inspector General Of Police Interested Party Independent Police Oversight Authority Interested Party M.A.M Interested Party S.M Interested Party Ruling 1.This matter presents two competing interests. The petitioner, EAA sues as the mother and next friend to KA a minor claiming that she, the petitioner, is the biological mother to the minor and that the respondent DCI Child Protection Unit violated the rights of the minor when they abducted the minor on or about the night of 22/10/2025 at [Particulars withheld] Estate along Jogoo Road in Nairobi and later alleged that the child was subject of human trafficking. 2.The petitioner alleges that the respondent refused to hand over the custody of the child to the petitioner mother and denied her access to the child while threatening to charge the petitioner with obstructing police investigations while at Jogoo Road Police Station. 3.That the petitioner reported the matter to the Independent Policing Oversight Authority – IPOA and that while at the said IPOA offices in November, 2025, the minor child called the petitioner using a strange mobile phone number informing the petitioner that the child was at the dilapidated and inhospitable care center within Nairobi. That the minor begged the petitioner to pick her up. 4.The petitioner states that on 23/10/2025, she was summoned to undergo a maternity DNA test to establish if she was the biological mother to the child which she did accept and that she attended the Government Chemist’s laboratory at Kenyatta National Hospital where she was coerced to sign a DNA consent form. 5.That again, on 21/11/2025 she was summoned the second time to appear for a second second DNA maternity test upon which she learnt that the respondent had moved the Chief Magistrate’s Court at Milimani Law Courts and obtained an order compelling the petitioner to submit to compulsory DNA sample collection, which maternity results were released on 24/11/2025 confirming that the petitioner was the biological mother to the minor. 6.That following the maternity DNA test, the minor was released to the petitioner without any apology, communication or care on the emotional trauma and psychological torture that she and the minor had suffered. The petitioner claims that she lives in fear of a second raid on them to take the child on allegation of human trafficking of the child. 7.The petitioner therefore filed the petition dated 19/1/2026 seeking orders of declaration that the respondent violated the petitioner’s and the minor’s rights and fundamental freedoms under Articles 25(a), (27, 28, 29(1), 35(1), 45(1), 47, 48 ,53(1) of the Constitution and Sections 8, 11,12,29 of the Children’s Act, 2022. 8.The petitioner also seeks for a permanent injunction to issue restraining the respondent or any other person claiming through the respondent, from interfering with the petitioner’s custody, care and control of the minor KA. 9.The petitioner also prays that the Government be ordered to pay her compensation in the sum of Kshs. 10,000,000 for unlawful separation and breach of the constitutional rights of the petitioner and the minor under the Constitution and the Children’s Act, 2022. 10.No sooner had the petitioner filed her petition than the applicants in the notice of motion dated 13/4/2026 filed their application seeking to be enjoined to the petition as interested parties and to have a second independent DNA test conducted on the minor and themselves to determine who the biological parents of the minor KA are and under the court’s supervision. 11.The reasons for the applicants seeking the twin orders are contained in the grounds on the face of the application and the affidavit in support sworn by the 1st applicant MAM. in which she deposes that she believes that the minor subject of the petition is her biological child because her child with a similar name and features born in 2010 went missing in 2014 and that she reported the missing child to the Police who have since then, been investigating the loss of her child with the 2nd applicant being her father. 12.That the child, CM was born in Nairobi on 12/6/2010 as per the birth certificate and notification of Birth annexed and her birth certificate issued on 11/5/2011 vide entry No. xxxxxxxxx, at St Marys Hospital and that when the child was about 4 years old on 25/4/2014, she went missing while playing outside their house. 13.The 1st intended interested party deposes that she had recently learnt that there was a child at St Michael’s School with a similar name as her missing child and with similar features so she contacted the respondent and recorded her statement and that even after reviewing the pleadings and documents in this petition, she was persuaded that the child subject of this petition was hers. 14.The applicants annexed the birth certificate, notification of birth and child Health Card and assert that the DNA process undertaken was procedurally flawed, irregular, possibly compromised and that there is a real possibility of manipulation of the findings presented before this court by the petitioner. 15.The applicants believe and are apprehensive that the manner in which the petition has been presented before this court is intended to foreclose or obstruct further investigations in the identity of the minor hence they should be accorded to identify the minor so that all issues involved can be fully resolved. 16.The petitioner vehemently opposes the application for joinder and the request for a second DNA contending that a DNA was conducted and results show that she is the biological mother of the child hence there is no reason for joinder of the applicants and a second DNA as that would slow down the conduct of these proceedings and violate rights of the child. She contends that it is not in the interest of the child to allow the application which is merely based on suspicion with no tangible evidence to support the allegations that the child belongs to the applicants. 17.The interested parties support the application for joinder by their respective replying affidavits. The 1st and 2nd interested parties filed a joint replying affidavit sworn by CPL Paul Aboge on 30/4/2026 asserting that the intended interested parties have a stake in these proceedings because a missing child report was filed vide OB No xx/25/4/2014 and later, the 1st applicant received a report of the child being at St Michaels Primary School and she reported to the respondent who commenced investigations. 18.That since the applicants are the primary complainants on the missing child subject of this petition, it is in the interest of justice that they be enjoined to these proceedings as they stand to be affected by the outcome of these proceedings. That no prejudice will be occasioned to the petitioner and that instead, the joinder will assist the just, efficient and expeditious determination of the petition. 19.The 3rd interested party filed a replying affidavit sworn on 3rd May, 2026, supporting the joinder application, which it asserts, is in the best interest of the child subject of the petition in order to enable the court resolve all the matters in dispute. 20.That the applicants are not strangers but possess the direct identifiable stake as the main complainants whose report is still under investigations over their missing child. That it is therefore in the best interest of the minor that the applicants be enjoined as interested parties. 21.In their submissions, the applicants’ counsel reiterated the depositions in the grounds and supporting affidavit, citing Rules 3 & 7 of the Mutunga rules and maintaining that the joinder of the applicants who have an identifiable real stake in these proceedings will assist the court to completely and effectually determine the issues involved. 22.That since the child is subject of a missing child report filed with the respondent in 2014, it is important that the applicants who believe that the child is theirs be enjoined to these proceedings, maintaining that it is in the best interest of the child that the applicants are enjoined and an independent DNA test be done to establish who are the real/biological parents of the child and that no prejudice will be occasioned to the petitioner as the DNA will eliminate doubts of competing parental claims. That DNA results were not conclusive as only one result came out yet there were two tests done. 23.The applicants’ position is supported by the respondent who submit that the applicants have demonstrated that they have direct identifiable stake in the outcome of the petition and that the petition as filed is intended to interfere with the investigations on a missing child. On DNA, it was submitted in support, that the results will assist the court to conclude on the contested parentage of the child. 24.On the part of the 1st and 2nd interested parties, they support the application for joinder and maintained that it was in the best interest of the minor. 25.The 3rd interested party too submitted in support of the prayers for joinder as well as the second DNA test. 26.The petitioner opposes the application for joinder and a second DNA test. It was submitted that the intended interested parties/applicants have no stake in the matter and that this court has no jurisdiction to entertain that application which is an abuse of court process. 27.According to the petitioners, this is a constitutional petition alleging violation of rights over the removal of the child from her mother and detained for over a month. Reliance was placed on Mumo Matemu vs Trusted Society for Human Rights (2014) eKLR. It was submitted that the applicants rely on mere suspicion and that they should seek for alternative remedy before the Children’s court, not in this court. That the applicants had not addressed the issues raised in the petition and that if the court feels that it is in the best interests of the child, it should not deal with the matter but refer the issues to the Children’s Court. Counsel submitted that the application was slowing down considerations before this court. 28.In a rejoinder, the applicants’ counsel submitted relying on the case of Ajwang & another Vs Osodo Const. Petition No. 1 of 2020 on the true test of joinder of parties at paragraph 18 of the Ruling, page 5. 29.It was submitted that the petition alludes to 2 DNA tests that were not conclusive as per the petition itself hence the court has jurisdiction to join parties and her and determine the petition conclusively. Analysis and Determination 30.I have considered the application for joiner and a DNA test to establish the true parentage of the minor on whose behalf the main petition is brought. The issues for determination are first, whether this court has jurisdiction to entertain the application and secondly, whether the application has any merit. 31.On jurisdiction the court is already seized of the petition claiming that the petitioner’s constitutional rights were violated by the respondent’s alleged abduction and detention of the minor for over one month on the basis of an alleged missing child and that after a DNA test was conducted on the minor, the petitioner EAA and the 1st intended interested party herein in 2025 November, it was established that the petitioner is the biological mother of the child. 32.This court cannot therefore, have jurisdiction to entertain the petition, yet lack the jurisdiction to entertain an application for joinder of parties and or to decide whether another DNA test is necessary to settle the question of competing claims of two sets of parents claiming to be parents of one child, on whose behalf the petition is initiated. 33.In addition, this Court as the High Court is ward of every child more importantly, when it is exercising jurisdiction under Article 165 3(b) of the Constitution, to determine whether any right or fundamental freedom under the Bill of rights is threatened with violation or is violated. 34.The fact of DNA testing, if established will, in any event, determine rights of the child, which rights include the right to know her biological parents, and which matter, this court has jurisdiction over in the context of proceedings before it as pleaded in the Petition, This Court cannot therefore donate that jurisdiction to a magistrates’ Court when a petition is rightly before it to determine issues of alleged violation of rights of a child who is alleged to be the petitioner’s child while another set of parents had complained that the said child is their reportedly lost child. 35.Furthermore, Jurisdiction to join parties as interested parties to constitutional petitions is derived from Rule 5 of the Mutunga Rules which empowers this court on its own motion or on application by any party to join a party who ought to have been joined or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter. 36.Rule 3(8) on the other hand provides that nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse process of the court. 37.The petitioner claims that the child was abducted and detained by the respondent Child Protection Unit of the Respondent DCI and later she learnt of alleged investigations into a missing child report made by the 1st applicant but that after they were allegedly subjected to two DNA tests, she was confirmed to be the child’s mother in one of the tests although she says nothing about the other test, which makes the applicants claim that the tests were inconclusive and probably influenced leading to the child being returned to her after a month, to the dissatisfaction of the applicants herein. It was after the return of the child that two months later, the petitioner filed the petition alleging violation of her rights and the rights of the child. 38.Upon the applicants learning of the petition, they applied to be enjoined saying that the petition, in the manner it is presented, is intended to close the investigations which are ongoing on their missing child yet the matter is not closed. 39.Further, the applicants claim that it is only after an independent DNA test is conducted that they will rest on the issue of their missing child since they still believe that the child subject of this petition is theirs and that the DNA tests done were inconclusive and possibly manipulated since there were two tests done but only one result was released. They maintain that it is in the best interest of the child that the second DNA test be undertaken to establish the parents of the child subject of the petition. 40.The respondent and interested parties support joinder since it is the applicants who are the complainants in the missing child report subject of investigations that led to the alleged breach of rights of the child subject of the petition. 41.Having considered the above, and in line with the Mumo Matemu case and the Ajwang Vs Osoda case, I am satisfied that the applicants have established an identifiable stake in this petition and that they ought to have been enjoined from the onset as interested parties for reasons that it was their report of a missing child, nearly 12 years ago that led to investigations which culminated in the alleged abduction and detention of the child for over one month by the respondent. 42.In the view of this Court, the presence of the two applicants as interested parties will aid this court to conclusively and effectually determine all the issues involved in the petition. I therefore find the prayer for joinder merited and I allow it. 43.On the prayer for another DNA testing, I make the following observations:(i)The petitioner’s supporting affidavit to the petition annexes copy of birth certificate No. Bxxxxxxx entry No. xxxxxxxxxx showing that the child KA was born on 10/6/2012 at New Nyanza Provincial General Hospital to EAA the petitioner herein. The child’s birth was registered on 25/6/2012 but the birth certificate was only issued on 29/10/2025 after the alleged abduction and detention of the subject child. 44.There is off course the report of the Government analyst dated 24/11/2025 on the maternity of the child, excluding the 1st applicant herein as a biological mother of the child. However, the 1st applicant’s affidavit in support of the joinder and for another DNA test application annexes the copies of OB report made to the Police of a missing child KM aged 4 years at Mukuru Kwa Njenga being OB No. 25/4/2014 at 2.00pm lodged by the 2nd applicant herein SM, a statement recorded by the 1st applicant on 24/101/2025 at DCI Child Protection Unit on the disappearance and learning of the whereabouts of the child reportedly mission in 2014, Birth Notification of a child born on 12/6/2010, Child Clinic Card and Birth certificate A No. xxxxxx entry No. xxxxxxxxx born on 12/6/2010 to SMN. and MAM the applicants herein. The birth was registered on 16/7/2010 only one month after birth and the Birth certificate was issued on 11/5/2011, when the child was about one year old. 45.There are other features in the two birth certificates produced by the respective parties- petitioner and the applicants, which are different yet the birth certificates are supposed to be public documents with the same features. 46.In the applicants’ birth certificate document, the child was born at St. Mary’s Hospital, Nairobi and the notification of birth was issued to the 1st applicant, his Identity card number provided. The child underwent all the immunization. In the birth certificate produced by the petitioner, the birth was at NNPGH-New Nyanza Provincial General Hospital 47.There are some inconsistences in the two birth certificates which call for more scrutiny of the parentage of the child who in view of the serious allegations of possible manipulation of the DNA results submitted, another DNA test involving not only the 1st applicant and petitioner but also the 2nd applicant, to establish whether the child is biologically connected to him. 48.It is also in the interest of justice and the best interest of the child that an independent DNA test be conducted to establish, not only her maternity but also, her paternity, now that the 2nd applicant has emerged, unlike in 2025 when only the 1st applicant emerged to claim that the child was possibly her reported missing child. 49.In my view, the requested DNA test will not be prejudicial to the rights of the child who is now a teenager and no doubts should linger into her mind as to who are her natural parents, now that none of them claim to have adopted her. 50.Accordingly, I allow the prayer for an independent DNA testing to establish the parentage of the minor KA to be conducted on all the applicants, the petitioner and the subject child KA. The DNA samples shall be obtained from the applicants herein who are now the 4th and 5th interested parties, respectively and the petitioner, as well as the minor KA. and submitted for forensic analysis and comparison with the samples of the minor KA. 51.The DNA samples collection shall be done in a humane, professional and medically appropriate manner, respecting the rights of the parties hereto and the best interests of the child and the results shall be submitted to this court directly as soon as they are ready for appropriate orders. 52.Additionally, to ensure credibility and independence of the DNA results, the DNA testing shall be done at two different facilities, one at the Kenya Medical Research Institute [KEMRI] Laboratories and at the Lancet Laboratories respectively. The independent results shall be transmitted to this Court as soon as they are ready. 53.The costs of the DNA testing shall be met by the applicants herein who requested for the tests. 54.I make no orders as to costs of the application which involves a minor. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JUNE 2026R.E. ABURILIJUDGE