[2016] KEHC 1139 (KLR)
The court held that while pregnancy compensation is recognized under Kikuyu customary law, the appellants failed to discharge the burden of proof required to establish entitlement. The evidence presented was insufficient, lacking corroboration and failing to prove sexual intercourse or paternity. The absence of a...
Source-derived case information.
- Citation
- [2016] KEHC 1139 (KLR)
- Parties
- Appellant: J M; Appellant: Another; Defendant: S C N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 904 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Customary Law Pregnancy Compensation, Proof of Paternity, Burden of Proof, Customary Law Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J M
Appellant
Another
Appellant
S C N
Defendant
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellants proved entitlement to pregnancy compensation under Kikuyu customary law.
- 2 Whether the trial court erred in requiring proof of sexual intercourse and paternity.
- 3 Whether the absence of a DNA test or corroborative evidence was fatal to the appellants' case.
Ratio Decidendi
The court held that while pregnancy compensation is recognized under Kikuyu customary law, the appellants failed to discharge the burden of proof required to establish entitlement. The evidence presented was insufficient, lacking corroboration and failing to prove sexual intercourse or paternity. The absence of a DNA test and the lack of a police report regarding the alleged rape further weakened the appellants' case. The trial court was correct in dismissing the claim as not proved on a balance of probabilities. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 904 OF 2005
J M & ANOTHER.....................APPELLANT
VERSUS
S C N........................................DEFENDANT
(An appeal against the conviction and sentence of Resident Magistrate G.P Ngare in Kangema Civil Case No. 71 of 2001 delivered on 8th November, 2005)
JUDGEMENT
The appellants are father and daughter who sued the respondent in the lower court for damages for pregnancy compensation under Kikuyu customary law. Their suit was dismissed by the lower court hence this appeal. In the memorandum of appeal they faulted the trial court for finding that the 2nd appellant and the respondent ought to have been friends for the respondent to be liable to pay pregnancy compensation.
The trial magistrate was also faulted for stating that the appellants refused to let the 2nd appellant undergo a DNA test. He was also faulted for finding that the appellants had not proved the agreement between them and the respondent to pay compensation demanded, and that he was also wrong to find that the case was not proved on a balance of probability.
As the first appellate court I have considered the evidence adduced before the trial court with the view to arriving at independent conclusions. The trial court found that it was important for the appellants to prove that there was sexual intercourse giving rise to the pregnancy. The evidence on record was that the respondent raped the 2nd appellant. This was denied by the respondent and at the end of it all, it was the word of the 2nd appellant as against that of the respondent.
The trial court found that the best answer to the issue was for the parties to submit to a DNA test to determine paternity but this was not done. He also dismissed the alleged agreement between the parties for reasons that there was doubt as to whether the respondent participated in the proceedings. In what would appear to have been a straight forward case, the evidence left several loose ends.
The 2nd appellant did not report the sexual encounter with the respondent to her parents until she was taken to hospital by the 1st appellant. This was a criminal case of rape yet no report was made to the police. Corroborative evidence is lacking in material particulars.
Whereas pregnancy compensation is allowed under Kikuyu Customary law and perimeters settled, proof was lacking in this particular case. The trial court was correct to dismiss the appellant’s case. I am in agreement therefore that this appeal is lacking in merit and therefore dismissed. Each party however, shall bear their own costs.
Dated, signed and delivered at Nairobi this 30th Day of November, 2016.
MBOGHOLI MSAGHA
JUDGE