[2008] KEHC 3619 (KLR)
The court found that the appellant and respondent cohabited from 1993 to 2000, satisfying the statutory requirement under Section 25(2) of the Children Act for acquisition of parental responsibility. The evidence of cohabitation, the respondent's firm testimony, and the unchallenged DNA evidence provided sufficient...
Source-derived case information.
- Citation
- [2008] KEHC 3619 (KLR)
- Parties
- Appellant: Francis Muchangi Njue; Respondent: Teresia Nyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Child Maintenance, Parental Responsibility, Cohabitation, Paternity Dna Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Muchangi Njue
Appellant
Teresia Nyaga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant acquired parental responsibility for the two children under Section 25(2) of the Children Act.
- 2 Whether the evidence of cohabitation and paternity was sufficient to impose a duty of maintenance on the appellant.
- 3 Whether contradictions in the respondent's evidence undermined the trial court's findings.
Ratio Decidendi
The court found that the appellant and respondent cohabited from 1993 to 2000, satisfying the statutory requirement under Section 25(2) of the Children Act for acquisition of parental responsibility. The evidence of cohabitation, the respondent's firm testimony, and the unchallenged DNA evidence provided sufficient proof of paternity. The court held that minor contradictions in the respondent's evidence did not undermine the main facts. The trial magistrate correctly interpreted the law and evidence, and the appellant's grounds of appeal lacked merit. The appeal was therefore dismissed, affirming the trial court's orders for joint maintenance responsibility.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The orders of the trial magistrate regarding joint maintenance responsibility remain in force.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU Civil Appeal 84 of 2006
FRANCIS MUCHANGI NJUE……………………………APPELLANT
VERSUS
TERESIA NYAGA………………………………………RESPONDENT
JUDGMENT ON APPEAL
The appellant has filed this appeal complaining of Resident Magistrate at Embu in Children Case No. 1 of 2005.
The grounds of appeal are set out in the memorandum of Appeal. The dispute as shown in the plaint is regarding the maintenance of two children Brian Murimi and Ian Gachoki. The Respondent also sought her own maintenance and legal custody of the two children. After full hearing, the Trial Magistrate delivered Judgment on 23/3/2006. The Trial Magistrate found that the parties had cohabited from 1993 to 10th July 2000 and that the parties are parents of the 2 children and therefore the appellant had acquired parental responsibility under Section 25 (2) of the Children Act and that the appellant had a duty to maintain the two children by virtue of Section 90 (e) of the Children Act. The Trial Magistrate held that the two parties shall have joint responsibility of maintaining the two children subject of the suit.
The first ground of appeal related to the evidence of Respondent that was not corroborated. It is my finding as correct that the finding by the Trial Magistrate was that the cohabitation was from 1993 to year 2000. Therefore for purposes of Section 25 (2) of the Children Act there was cohabitation for a period or periods which amount to not less than 12 months. The evidence Act does not require every witness’s evidence to be corroborated. However where corroboration is required it is so stated. The evidence was believed by the Trial Magistrate and there was no need for corroboration the first ground is with no merit. Regarding ground 2 and 3 there was evidence of cohabitation and the DNA evidence on the paternity of the two boys. The mother plaintiff states that she started cohabiting with Appellant as husband and wife in 1993 and first child was born in 1994. The second child was born in 1997 while parties were still living together. He evidence was firm on cross-examination and added to the evidence of DNA test. Dr. Peter Ndirangu Gatuma gave evidence after the court ordered for DNA test who said currently the good standard for proof of paternity is to carry out DNA analysis. From what is stated, the test was done through Nairobi Hospital and the communication was carried out through E-mail the modern way of communication nowadays.
It is my finding that the unchallenged evidence of the mother and the Doctor’s evidence/opinion is proof that the Appellant is the father of the children.
On grounds number 4 and five the Trial Magistrate used the expression “some what right” was not casual. It was the correct position according to the record. But in view of the duration of cohabitation 1993 to 2000 the Appellant was referring to the Respondent as a “friend” It is to be noted that the Children Act was enacted to protect the interests of children (see the preamble to the Act) until they attain the age of 18 years. Therefore the evidence is to be interpreted in that light. The contradictions mentioned by Appellant are minor and do not detract from the main evidence that the Appellant was the father of the two boys and that he had acquired parental responsibility for the two children under Section 25 (2) of the said Act.
Upon consideration of the above, I find that the grounds of Appeal have no merit. The appeal is dismissed with costs to the Respondent.
Dated this 18th of January, 2008.
J. N. KHAMINWA
JUDGE
18/1/2008
Khaminwa – Judge
Njue- Clerk
Mr. Kathungu for Respondent present
Read in open court.
J. N. KHAMINWA
JUDGE