[2007] KEHC 2040 (KLR)
The court held that the issue of paternity and the request for a DNA test were matters that should have been addressed in the subordinate court, which had already dismissed the suit after finding that the applicant failed to prove the respondent was the father. The High Court found that the application was an...
Source-derived case information.
- Citation
- [2007] KEHC 2040 (KLR)
- Parties
- Applicant: Freda Gakii Nathan (Suing as the mother and next friend of Sharomketh Mutembei); Respondent: Richard Kinyua Karani
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 184 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for DNA Test After Dismissal of Suit in Subordinate Court
- Outcome
- application dismissed with costs
- Legal Topics
- Child Custody, Child Maintenance, Paternity Dispute, Dna Testing, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Freda Gakii Nathan (Suing as the mother and next friend of Sharomketh Mutembei)
Applicant
Richard Kinyua Karani
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for DNA Test After Dismissal of Suit in Subordinate Court
Legal Issues
- 1 Whether the High Court can compel the respondent to submit to a DNA test after the subordinate court dismissed the suit for maintenance and custody.
- 2 Whether the application is res judicata given the subordinate court's findings on paternity.
- 3 Whether the Children Court had jurisdiction to order a DNA test.
Ratio Decidendi
The court held that the issue of paternity and the request for a DNA test were matters that should have been addressed in the subordinate court, which had already dismissed the suit after finding that the applicant failed to prove the respondent was the father. The High Court found that the application was an attempt to introduce new evidence after the conclusion of the original proceedings and that the matter was res judicata. The Children Court had jurisdiction to determine issues of parental responsibility, custody, and maintenance, including the ordering of a DNA test, but such requests must be made at the appropriate stage. The application before the High Court was therefore without...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MERU
MISCELLANEOUS APPLICATION 184 of 2006
FREDA GAKII NATHAN (Suing as the mother and next friend of
SHAROMKETH MUTEMBEI .................................. APPLICANT
VERSUS
RICHARD KINYUA KARANI ……….....…....…. RESPONDENT
RULING
This is a matter which was heard and determined in the court below – Maua PM Court where the issue, as can be gleaned from the annextures, was the maintenance and custody of a child alleged to be the son of the respondent.
The lower court after hearing evidence from both sides found that the applicant had failed to prove her claim against the respondent and dismissed the suit.
It is confirmed that an appeal against the decision of the lower court has been preferred to this court. The applicant has applied in the present application for orders to compel the respondent to submit to a DNA test, among other prayers. The applicant argues that the respondent denied paternity of the child in the court below and that it is the child’s right to be cared for by both parents and also to know his father. That the subordinate court lacks jurisdiction to order DNA test. The respondent in his replying affidavit argues that the application lacks merit and ought to be dismissed.
That the subordinate court having dismissed the suit after being satisfied that he had no relationship with the child, that issue cannot be the subject of this application. That this application is res judicata.The respondent denied, once again, paternity of the child in question. The applicant filed a supplementary affidavit in which she states that the matter is not res judicata.
I have carefully read the application and considered the submissions by counsel and the single authority cited by counsel for the applicant, Mary Wambui V Kiarie Chege.HCC (Kakamega) No.105 of 2004.
From the out set I need to declare that this is not an appeal against the decision of the subordinate court. I will therefore avoid the merits or demerits of that decision.
The application is by way of Chamber Summons. There is no suit pending and also it is not an originating summons. However, these are matters that are neither here nor there in view of the position I have taken in this matter.
The orders sought before the subordinate court were maintenance and custody of the child the subject of this application.
Those prayers were grounded on the premise that the respondent was the husband to the applicant and the father to the child. That being the father of the child he was bound to provide maintenance. It was also alleged that the respondent has been demanding the custody of the child from the applicant. For this the applicant prayed that she be granted custody. Both maintenance and custody connote parental rights and duties in respect of a child under the Children Act.
For a party to be ordered to maintain a child, it must be shown that the party is either a parent, custodian or guardian appointed under the Act.
The term “parent” is defined in Section 2 of the Children Act to mean;
“………. the mother or father of a child and includes any person who is liable by law to maintain a child or is entitled to his custody”
This is what was before the subordinate court. It found that the applicant had failed to prove that the respondent is the father to the child. That decision has been challenged an appeal. For me the issue of DNA is evidence that ought to have been sought in the subordinate court. It is clear from the judgment that the request for DNA test was raised in written submissions. The court observed that it was too late in the day to seek the order as the matter had already been concluded.
The Children Court has jurisdiction under Section 73 of the Act to hear civil suits relating to parental responsibility, custody and maintenance, among other matters.
Counsel for the respondent submitted that the applicant is fishing for evidence by filing this application. With respect, I could not agree more.
In the result I find that this application has no merit and is dismissed with costs.
DATED AND DELIVERED AT MERU THIS 7th DAY OF May, 2007.
W. OUKO
JUDGE