[2023] KEHC 25619 (KLR)

JCK & anothe (Minors suing thro' their next friend mother MNB) v GKC (Civil Appeal E014 of 2022) [2023] KEHC 25619 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25619 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal E014 of 2022

PN Gichohi, J

November 20, 2023

Between

JCK & MKK (Minors suing thro' their next friend mother MNB)

Appellant

and

GKC

Respondent

(Being an Appeal arising out of the judgment and decree of Hon. S. K. Onjoro (Principal Magistrate) in Kisii Chief Magistrate’s Court Children’s Case No. 23 of 2013 delivered on 28/01/2022)

Judgment

1. The appellant was the plaintiff in Kisii CMCC No 23 of 2013; In the matter of JCK and MKK (minors suing thro’ their mother and next friend MNB v GKC. In her plaint dated April 8, 2013 and filed on that day, the appellant averred that she cohabited with the respondent as husband and wife between January 4, 2011 and February 15, 2013. During that period, they were blessed with two issues on May 9, 2012 namely JCK and MKK (both eleven (11) months at the time of filing suit).

2. The appellant contended that the respondent, who is the children’s biological father had since deserted them and been cruel towards the children by failing to provide maintenance and upkeep, denying them fatherly love, attention and parental responsibility. That he decided to marry another woman. She added that he was a man of means working as an army officer. He was earning kes 35,000. 00 at the time of filing suit.

3. For the above reasons, the appellant claimed for kshs 18,500. 00 from the respondent being food, shelter, clothing, medication and house girl expenses towards the maintenance of the two (2) issues. She further prayed for legal custody of the children and for costs of the suit.

4. Simultaneously, the appellant filed a chamber summons application bearing the same date seeking an interlocutory order for maintenance and upkeep for custody of the two minors pending the hearing and determination of the suit. She also sought interlocutory orders directing the Respondent to provide maintenance and upkeep for the two minors pending the hearing and determination of the suit.

5. That application was allowed and the orders duly issued on April 8, 2013. Subsequently , interlocutory judgment was entered in favour of the appellant as against the respondent. Further subsequent orders were issued on March 12, 2014 by consent of the parties setting aside the ex-parte judgment. The respondent was granted leave to file defence. The Respondent was ordered to be paying Kshs 6,000/= every 5th of the month for maintenance of the minors.

6. Subsequently, the respondent filed a chamber summons dated July 31, 2014 seeking stay of execution of the above orders on the grounds that he was not the biological father of the minors herein and that he has never acquired parental responsibilities over the minors. He also claimed that the has never cohabited with the appellant as husband and wife. Those orders were issued pending hearing inter-partes on August 7, 2014 but they were later set aside.

7. The court then set a date for hearing of the matter and only the appellant testified on April 2, 2015 and was cross- examined by the defence counsel. The hearing was adjourned for the respondent to attend and testify. Before the respondent could testify, the appellant filed a chamber summons application dated August 23, 2016. The respondent opposed it by filing grounds of opposition. The main ground was that the application was res judicata.

8. When notified by the respondent’s counsel that a similar Application had been disposed of and a ruling done, the trial court set the matter for directions. The court later dismissed the suit for want of prosecution but it was later.

9. The matter was set for hearing of the defence case but the defence case was marked as closed for non- attendance by the respondent . On November 7, 2019, and in the presence of both partied, the court reserved that matter for judgment. That judgment was ultimately delivered on February 14, 2020 on the following terms:-1. The defendant to pay to the plaintiff monthly sum of Kshs. 10,000/= towards food, food and general maintenance of the minors herein.2. The defendant to pay school fees for the minors and school related expenses.3. The plaintiff to cater for rent and health care for minors.4. Each party to bear his own costs of the suit.

10. The court proceedings show that on February 14, 2020, the respondent filed the application dated February 14, 2020 seeking stay of execution of the judgment for reasons that he was keen on defending his case. After hearing both parties, the trail court delivered its ruling on July 13, 2020 allowing the Application thus opening the case and the respondent testified on October 8, 2020. Parties informed the court that they would file submissions on the issue of paternity as an order for DNA would help the court.

11. Noting that the issue of paternity was in dispute, the trial court ordered on October 8, 2020 that a paternity test be conducted at the Government Chemist in Kisumu with the costs being shared equally by the parties. The court then directed parties to appear before it on November 9, 2020 for further directions. The matter did not substantially proceed for directions until October 25, 2021 when the court reserved a ruling date for November 26, 2021.

12. The substance of the ruling is not clear since there is neither a ruling nor were directions issued on November 26, 2021. In that stead, judgment was entered on January 28, 2022 dismissing the appellant’s suit in its entirety with each party being directed to shoulder his own costs.

13. The appellant was aggrieved by the judgment and decree of the trial court and on February 28, 2022, she filed a Memorandum of Appeal dated February 25, 2022. The grounds enunciated in support of the Appeal were that the trial court erred in dismissing the suit since it failed to order for a DNA to prove paternity of the two (2) minors. She was aggrieved that the trial court for failed to consider that the respondent denied to conduct a DNA test thereby failed to appreciate the law and velocity of pleadings. That as a result, the trial court made an injudicious decision.

14. For those reasons, the appellant prayed that the appeal be allowed by compelling the respondent to contribute maintenance and upkeep for the children. She further prayed for costs of the Appeal.

15. The Appeal was directed to be disposed of on the strength of the parties’ written submissions. However, the respondent failed to participate in the in the appeal and therefore, only the appellant filed on January 12, 2023 submissions dated 11. 1.2023. After laying a brief abridgment of the suit, the appellant submitted that on the strength of article 53 (2) of Constitution and section 4 (2) and 3 (b) of the Children’s Act, the interests of the child were of paramount importance.

16. She maintained that the respondent was the minors’ biological father. That he impregnated her before leaving for his Somalia mission and that during that period, the respondent rented a house for the appellant in Kisii which facts, she submitted, were not disputed. She submitted that the respondent admitted that he was the father of the minors when he testified that he could only afford to maintain his current wife and the children sired from that union.

17. The appellant cited several decisions on the best interest of the child being paramount, the equal responsibility of the parents and the duty of the court to weigh the competing rights of the child and the person alleged to be the biological father.

18. She submitted that the respondent failed to avail himself to conduct a DNA test as ordered by the court yet the trial court pronounced itself without taking into consideration the paternity test results or the orders therewith.

19. Noting that the respondent disputed the contents of the birth certificates she asserted that the same remained conclusive evidence since the Registrar was never called as a witness to challenge the contents of the same. She disputed the allegation that she was taken to hospital for a pelvic ultra sound since that evidence was not corroborated by a medical practitioner.

20. Having argued that the respondent remains the minors’ biological father, the appellant urged this court to compel him to provide for maintenance by dint of Section 90 (a), 91, 93 and 94 (1) of the Children’s Act. She urged this court to take into consideration the fact that the minors’ school fees and transport were not specifically prayed for at the time of filing suit.

21. In the premised circumstances, she prayed that this court does enhance the figure claimed at the trial court to an additional Kshs 15,000. 00 to cater for those unforeseen and arisen expenses. That the court ought to consider that she has single-handedly raised the minors for more than ten (10) years. She prayed that the appeal be allowed with costs.

Determination 22. This being a first Appeal, this Court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court in order to arrive at its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. [Selle v Associated Motor Boat Company Ltd [1968] EA 123.

23. This Court notes that the orders of the court issued on 8. 10. 2020 appear not to have been complied with since there are no paternity test results. The trial court found that paternity was in dispute while observing that the court had the mandate to ensure the best interests of the child are taken care of. It was for this reasons that the order for DNA was made.

24. The constitutional and legal matrix in our jurisdiction upholds the rights of children as very paramount and cannot thus be overemphasised. Article 53 (1) (e) and 2 of Constitution provides that:“(1)Every child has the right:(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.(2)A child’s best interests are of paramount importance in every matter concerning the child.”

25. Further, Section 4 (2) (3) of the Children’s Act provides that:“(2).In all actions concerning children whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.(3)All judicial and administrative institutions and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to:i.Safeguard and promote the rights and welfare of the child.ii.Conserve and promote the welfare of the child.”

26. Emphasizing on the best interests of the child, the Court in MJC v. LAC AC & Another [2020] eKLR held that:“What is stated in Section 4 (3) (b) of the Act is the paramountcy principle which is vital in all matters concerning children and must be given prominence. While considering this matter, this Court was alert to the welfare of the child herein who is of tender years. The matter is not about the appellant and the respondent and their interests are secondary to those of the child. The foregoing provisions require this Court to treat the interests of the child as the first and paramount consideration and must do everything to inter-alia safeguard, conserve and promote the rights and welfare of the child herein.”

27. When the trial court addressed its mind as to the parties availing themselves to conduct a DNA test, the trial court was alive to its role towards safeguarding the interest of the children in this case. On such an issue, Ngaah J. held in FKW (suing as the mother and next friend of GDW (Minor) v. DMM [2015] eKLR:-“What all these decisions point to is that where it is in the best interests of the child that a paternity test should be undertaken; where there is no other means of determining the father of a child other than by means of a paternity test and therefore where such a test is necessary in the circumstances and, where, in any event, the applicant has made out a prima facie case for such a test, then a court of law will ordinarily make an order for such a test.Looking at the applicant’s case from this perspective, there is no doubt that it is in the best interests of the subject child that theDNAtest should be taken. It is the child’s constitutional right and he is better of growing up with the knowledge of who his parents are. As noted earlier there is no other way of determining who the father of the subject child is apart from conducting aDNAtest and therefore this test is necessary in the circumstances of this case.” [Emphais added]

28. Since paternity was disputed, this Court would not deal with other orders sought in this Appeal. The best way of resolving the issues is to conduct a DNA test. It is only after establishing paternity conclusively that the trial court can then frame the issues for determination, analyse and dispose of the matter. In the circumstances, this Court finds that failure by the trial court to address itself as to the outcome of the paternity test was a misdirection and error.

29. Consequently, this Court makes the flowing orders:-1. The parties shall avail themselves for a paternity test at the Government Chemist within twenty (21) days from today’s date.2. Thereafter, the results of the said DNA exercise shall be furnished before the trial court.3. The trial court shall render itself so as to determine the merits of the case.4. In that regard, the trial court shall enter judgment on the strength of the paternity test results coupled with the evidence and submissions already on record.5. Each party to bear its own costs of this appeal.6. The Chief Magistrate Kisii Law Courts to urgently place the file before S.K.Onjoro Principal Magistrate, if still at the station, or any other Magistrate in the station and with competent jurisdiction, to comply with these orders.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT KISII (VIRTUALLY) THIS 20TH DAY NOVEMBER, 2023. PATRICIA GICHOHIJUDGEIn the presence of:N/A for AppellantN/A for RespondentAphline , Court Assistant