https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11810

MNM v CWW (Civil Appeal E105 of 2024) [2026] KEHC 11810 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11810 (KLR) Republic of Kenya In the High Court at Embu Civil Appeal E105 of 2024 RM Mwongo, J July 29, 2026 Between MNM Applicant and CWW Respondent (Being an appeal arising from the decision of Hon. J. A. Otieno (S.R.M) in Embu MCCHC E012 of 2023 delivered on 26th September, 2024) Judgment The Appeal 1.By a memorandum of appeal dated 10th December 2024 the appellant seeks that the appeal be allowed and the order of the trial court issued on 26th July 2023 and judgment delivered on 26th September 2024 and all subsequent orders be set aside. The appeal is founded on grounds that:1.That the learned trial magistrate erred in Law and fact in admission of secondary evidence in court of exhibits when indeed all the medical records on DNA samples relied upon by the prosecution appeared to be doctored (unauthentic);2.That the learned trial magistrate erred in law and fact when she went against the weight of the evidence tendered and the applicable law;3.That the trial magistrate erred in law and fact in failing to order the prosecution to produce the original medical reports of the DNA samples from KEMRI and Path Care Kenya limited. During the hearing of this matter thereof;4.That the learned trial magistrate erred in law and fact in denying the appellant his constitutional right to fair hearing before the court since the appellant was never present in the court during hearing of the case and court order delivered on the 26th July 2023 and the judgement delivered on 26th September 2024;5.That the learned trial and magistrate erred in law and fact in denying the appellant his constitutional right to fair hearing before the court since the appellant did not cross-examine or re-examine the prosecution's expert witness in court in regard to the authenticity of the medical reports on the DNA samples that appeared to be doctored since some involve different letter heads bearing no stamps e.g. Path Care DNA results;6.That the learned trial magistrate erred in law and fact by falling to supply receipt of the court collection fee and execution fee where all this money is deposited to M-Pesa No.070xxx7 together with the ordered amount of Ksh.8000 of up keeping of the minor;7.That the learned trial magistrate erred in law and fact by denying the appellant his constitutional right to defend himself after ruling and once the appellant requested for verification of medical report he was committed to a civil jail of 7 days imprisonment; Background 2.In the trial court, the respondent had filed a plaint seeking legal and actual custody of KHW, the minor; an order that the appellant herein pays maintenance in the sum of Kshs.5,000/= per month for food, Kshs.3,000/= per month for househelp, Kshs.2,000/= per month for diapers, school fees and other expenses and medication as needed by the minor; the appellant be granted visitation rights for the minor, and costs of the suit. 3.Through the plaint, the respondent asserted that the appellant is the biological father of the child, but he had abdicated his parental role. That she had, on several occasions, attempted to persuade the appellant to take up his parental roles but he refused. He denied being the biological father of the child and demanded a paternity test. She stated that she understood that parental responsibility is borne by both parents and she had taken up her part by providing shelter, clothing and general upkeep but the father of the child ought to also participate. 4.The appellant filed a statement of defense denying the averments made in the plaint. He also denied parental responsibility saying that he was not the biological father of the minor. He reiterated that a DNA test was necessary to ascertain this fact claimed by the respondent. 5.The trial court ordered that a DNA test be conducted at KEMRI at Kenyatta National Hospital. The results were filed in court indicating that the appellant was the biological father of the child with a 99.9% probability of paternity. Another DNA test was conducted at Pathcare Kenya Ltd. Again, it found that the appellant was the father of the minor, with reasonable certainty. 6.Both parties then filed several applications seeking various orders. The respondent filed a motion dated 23rd February 2023 seeking further orders for maintenance of the minor by the appellant. In determining that application, the court delivered a ruling on 26th July 2023 noting the appellant’s significant reduction in income. It was ordered that the appellant pays Kshs.8,000/= towards maintaining the child. This is one of the impugned orders. 7.The other impugned order is the final judgment of the court delivered on 26th November 2023 in which the court maintained its position taken in the previous ruling. The court also allowed the prayers made by the respondent through the plaint. The Evidence at the trial court 8.The respondent testified as PW1. She stated that by the time her marriage to the appellant was ending, they had a child, the minor in question. The respondent was left to fend for the child as the appellant moved on with his life. She stated that the appellant is a man of means, working for gainful employment at Kenya Power and Lighting Company, but he refuses to contribute towards the wellbeing of the child. 9.That she is straining financially since she has no source of income and it has become necessary for the appellant to be compelled to take up parental responsibility. She produced documentary evidence in support of her case. In cross-examination, she stated that the DNA tests conducted proved satisfactorily that the appellant is the biological father of the child and he should provide for her needs. 10.DW1 was the appellant. He stated that he was willing to take care of the minor but that the amount sought by the respondent is too high. That even though he is employed, after his deductions, his take-home amount is only Kshs.10,040/=. He stated that he is now married with 2 children and the respondent is also married. He proposed to contribute Kshs.3,000/= towards the needs of the minor. In cross-examination, he stated that he had no issues supporting the child but he had an issue with paternity. That the respondent rushed to FIDA and the issue is that she wants all his money. He stated that he did not believe the result of the DNA test done. He went on record stating that the DNA results were not officially or properly verified by the various institutions that issued them, and there were inconsistencies in the dates on the report and the receipt from KEMRI. Submissions on Appeal 11.On the court’s direction, the appeal was canvassed by way of written submissions. 12.The appellant submitted that the KEMRI DNA results appeared doctored, the report had no stamp or signature and no original copy was produced. He also stated that the results were given very late after the ruling against him had been delivered 3 months prior. The repeat DNA test conducted by Pathcare in South Africa was supposed to be opened in the presence of both parties but the password to the document did not work. He stated that the results were then dubiously produced in an envelope, because the envelope had no official name of the issuing institution and no seal or stamp to verify the source. 13.He contended that his samples for purposes of DNA were taken by Path Care but the result were delivered by one Unistel, an organisation that is different from the former one which collected the samples. He noticed that the logos of the institutions were different and yet this was never subjected to cross-examination in court. That the Path Care results also bore no stamp and signature. He submitted that the maintenance amount is not constant and the respondent changes the figures as she pleases. That he was erroneously committed to jail over a clerical error by the court and that this was unfair to him. 14.On her part, the respondent submitted that the appellant had been lying throughout the case. That when the DNA test was ordered, he tried to corrupt the results by paying an extra Kshs.15,000/= and then he falsified the payment receipt. That he committed to pay Kshs.3,000/= monthly after the KEMRI DNA results were out confirming that he was the father of the child. Regarding the second DNA test, the respondent stated that they both agreed in writing to have the samples taken and the results would be received through Unistel laboratories. 15.She stated that the appellant had been providing upkeep for the minor long before the matter went to court and she only sued because he had stopped paying. That the court accorded him a chance to have the KEMRI and Path Care DNA reports explained by the various CEO of the institutions but the appellant failed to serve summons upon the said institutions. She stated that the appellant is a difficult parent and this is evidenced throughout the proceedings. She urged the court to dismiss the appeal. Issue for Determination 16.The issue for determination is whether the appeal has merit. Analysis and Determination 17.The role of a first appellate court is to re-examine the evidence adduced before the trial court to reach its own finding. This principle was enunciated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 18.The main contentions in this appeal revolve around the DNA reports by KEMRI and Path Care which were produced as evidence. Through his argument made in the submissions, the appellant contended that the DNA results were not credible and that they were forged or procured opaquely. The question of paternity arose very early on in the case before the trial court. The trail court ordered the paternity tests be done, and the reports were produced as evidence. 19.During the defense case, the appellant raised the issues of credibility of the DNA reports and the court accommodated his concerns. According to the proceedings of the trial court, on 15th July 2024, the Chief Executive Officers at KEMRI and Pathcare were summoned by the court to explain the issues raised by the appellant in his defense regarding the DNA results. The officers were ordered to appear virtually on 27th July 2024. The record of the proceedings of the trial court indicate that on the scheduled date, the defendant told the court that he did not serve the summons to the Chief Executive Officers at KEMRI and Pathcare; and that he preferred to have these officers be heard before the High Court where he had already lodged an appeal. On that note, the trial Magistrate marked the defense case as closed and scheduled the matter for judgment. 20.It must always be noted that, in a case such as the present one, the paramount consideration by all parties and the court is “the best interest of the child” This is what is mandated by Article 53 of the Constitution which provides thus:“(1)Every child has the right—(a)to a name and nationality from birth;(b)to free and compulsory basic education;(c)to basic nutrition, shelter and health care;(d)to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;(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; and(f)not to be detained, except as a measure of last resort, and when detained, to be held—(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that take account of the child’s sex and age.(2)A child’s best interests are of paramount importance in every matter concerning the child.” [Emphasis added] 21.The case also brings out the issue of parental rights in the sense that the appellant has been pursuing a determination on paternity to prove whether he is actually the child’s parent before he can be subjected to parental responsibility for the child. The appellant also raised the issue that he is straining financially and can only afford Kshs.3,000/= monthly as upkeep for the child. It is not in dispute that the child was born during the appellant’s marriage to the respondent. However, the appellant is now challenging paternity. The respondent’s argument is that the appellant is simply buying time through the contention on paternity, and that, much time has already been wasted as he continues abdicating his parental responsibility. 22.This court is bound, in ensuring the best interests of the child, to consider parental rights because eventually they affect the said best interest of the child. In MAK v RMAA & 4 others [2023] KESC 21 (KLR), the Supreme Court gave guidance on circumstances where the best interest of the child should be balanced with parental responsibility. The Court held that:“Courts, therefore, while making a decision that will impact the child are mandated to consider all circumstances affecting the child. As such, we are of the view that the following guidelines are necessary and ought to be considered when balancing a child’s best interests and parental rights and responsibility:1.The existence of a PRA between the parties.2.The past performance of each parent.3.Each parent’s presence including his or her ability to guide the child and provide for the child's overall well-being.4.The ascertainable wishes of a child who is capable of giving/expressing his/her opinion.5.The financial status of each parent.6.The individual needs of each child.7.The quality of the available home environment.8.Need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child in which case supervised access to the child must be granted.9.Need to ensure that children are not placed in alternative care unnecessarily.10.The mental health of the parents and11.The totality of the circumstances.88.We need to emphasize that it is never in the best interest of a child when the parents are engaged in a protracted court battle. Court battles relating to children are more often than not very selfish in nature and it is easy to overlook the psychological and mental harm done to the child in the process…” 23.The learned trial Magistrate conducted due diligence to ensure that the appellant’s concerns regarding the DNA results were ventilated. These efforts included issuing summonses to the CEOs of the institutions that issued the DNA results. To that end, it can be said that the appellant was accorded a fair chance to be heard on his concerns regarding parental responsibility. However, instead of taking advantage of that opportunity, he expressed displeasure with the trial court and stated that he wished for the CEOs to testify before the High Court where he said he had already lodged an appeal. 24.The procedure for taking of additional evidence on appeal is found in Order 42 Rule 27 of the Civil Procedure Rules as follows:“(1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if—(a)the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or(b)the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.(2)Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.” [Emphasis added] Conclusion and Disposition 25.There is no doubt that an opportunity was given by the trial court for the appellant to summon and ensure that evidence he wished produced and/or testified was available. The appellant failed to serve the summons. As a result, the learned magistrate issued a judgment. 26.However, since the time when the appeal was filed, the appellant has not bothered to move this court for admission of additional evidence and no such matter has been determined. Moreover, the conditions set for admittance of additional evidence on appeal have not been satisfied since the trial court was itself ready to receive the evidence/examination of the CEOs but the appellant refused or neglected to serve the summons upon these officers. 27.In the result, the appellant was not prejudiced in any way since the trial court accorded him a chance to be heard. He squandered or misused that chance. His concerns about the DNA evidence cannot, therefore, be canvassed before this court for the first time since the matter herein is a first appeal. The court finds no reason in any event, to admit any additional evidence in the circumstances, even if it would have been moved to do so. 28.Ultimately, the appeal herein is hereby dismissed with no order as to costs. The appellant is ordered to continue satisfying the decree of the court issued on 26th September 2024 as this is in the best interest of the child. 29.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 29TH DAY OF JULY, 2026............................R. MWONGOJUDGEDelivered in the presence of:Moses Mwangi – Present in CourtCaroline Wainaina – Present in CourtFrancis Munyao - Court Assistant