NKM v NJS (Sued as the Mother and Next Friend of the Minor) (Civil Appeal E174 of 2025) [2026] KEHC 4638 (KLR) (10 April 2026) (Judgment)

NKM v NJS (Sued as the Mother and Next Friend of the Minor) (Civil Appeal E174 of 2025) [2026] KEHC 4638 (KLR) (10 April 2026) (Judgment) Neutral citation: [2026] KEHC 4638 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E174 of 2025 RN Nyakundi, J April 10, 2026 Between NKM Appellant and NJS (Sued as the Mother and Next Friend of the Minor) Respondent (Being an appeal against the ruling of the Hon. Kesse Cherono – Principal Magistrate delivered on 16th July, 2025 in Eldoret Magistrate’s Court Children’s Case No. E072 of 2024) Judgment Background 1.The brief background of this appeal is that the Respondent filed an application dated 31st March, 2025 seeking for review of the outcome in the paternity test dated 3rd February, 2025 directing that the same be conducted by obtaining fresh samples as well as other specific particularities being a court-sanctioned and court-supervised process to secure the integrity of the result; that with credible doubts cast on the integrity of the process undertaken by Government Chemist Kisumu and further direct that none of the staff involved in the process be allowed to engage in the review. That due to the immense cost implications the court directs that both parties bear their own costs and be conducted in the nearest facility being Government Chemist Kisumu, in the best interest of the child; that further to its supervision mandate and owing to multiple disputed results and suspicious conduct of the Respondent, the court be pleased to step up integrity measures in exercise of its discretion to direct that the test be personally conducted by the senior most officer responsible for paternity tests with a direct court mandate at Government Chemist Kisumu, and be personally required to account and report directly to the Court; that the court directs that the review be conducted by Polycarp Lutta who is currently listed as the Head of DNA services at Government Chemist Kisumu, with an additional personal responsibility for this particular review to assist the court reach a fair and just outcome. 2.The trial court considered the said application and allowed it in its entirety, and gave reliefs as follows:a.That the court be pleased to order a review of the outcome in the paternity test dated 3rd February, 2025 directing that the same be conducted by obtaining fresh samples as well as other specific particularities being a court-sanctioned and court-supervised process to secure the integrity of the result.b.That with credible doubts cast on the integrity of the process undertaken by government chemist Nairobi, the court directs that the review be done by Government Chemist Kisumu and further direct that none of the staff involved in the Nairobi process be allowed to be engaged in the review.c.That further due to immense cost implications the court directs that both parties bear their own costs and be conducted in the nearest facility being government chemist Kisumu in the best interest of the child.d.That further in its supervision mandate and owing to multiple disputed results and suspicious conduct of the Respondent, the court be pleased to step up integrity measures in exercise of its discretion to direct that the test be personally conducted by the senior most officers responsible for paternity tests with a direct court mandate at Government Chemist Kisumu, and be personally required to account and report directly to the court.e.That the court directs that the review be conducted by Polycarp Lutta who is currently listed as the Head of DNA services at Government Chemist Kisumu, with an additional personal responsibility for this particular review to assist the court reach a fair and just outcome.f.That the costs of this application be provided for. 3.Aggrieved by the said decision, the Appellant filed the instant appeal vide a memorandum of appeal dated 28th July, 2025 with the following grounds of appeal:a.That the Learned Magistrate erred in law and in fact by failing to consider the initial DNA test conducted by pathologists Lancet Kenya which independently excluded the Appellant as the biological father of the minor and corroborated the alter result from the Government Chemist Nairobi.b.The trial court erred in law and in fact by invoking its review jurisdiction solely on the basis of unproven allegations by the Respondent, without satisfying the legal threshold for review, including the existence of new and material evidence, an error apparent on the face of the record, or other sufficient reason. The court relied exclusively on the best interests of the child, without balancing that consideration against the need for procedural fairness and evidentiary support.c.The Learned Magistrate erred in law and fact when she held that the Respondent’s allegations casting doubt on the integrity of the DNA testing process had not been countermanded and remained uncontroverted by the Appellant yet the appellant expressly addressed each allegation in his replying affidavit and written submissions.d.The trial court erred in law and in fact by improperly shifting the evidentiary burden to the appellant, contrary to section 107-109 of the Evidence Act, despite it being the Respondent who bore the legal obligation to prove fraud, irregularity, or procedural impropriety in the conduct of the DNA testing.e.The Learned Magistrate erred in law and in fact by undermining established jurisprudence which recognizes DNA testing as the most reliable and conclusive method of determining paternity, without any justifiable basis to question the integrity of the results.f.The trial court erred in law and in fact by improperly exercising discretion in prescribing the location (Government Chemist Kisumu) and naming a specific officer (Polycarp Lutta) to conduct the DNA test, thereby interfering with institutional independence and setting a dangerous precedent for litigant-driven forum shopping and abuse of the judicial process.g.The Learned Magistrate erred in law and in fact by misapplying the “best interest of the child” principle under Art. 53(2) of the Constitution by treating it as absolute, and failing to balance it against the Appellant’s fundamental constitutional rights under Art. 28 and 31, including the right to dignity, privacy, and bodily integrity.h.The trial court erred in law and in fact by failing to consider the psychological distress, financial burden, and legal prejudice occasioned to the appellant, who already submitted to two intrusive DNA tests and was now subjected to further litigation without any unlawful justification. Appellant’s submissions 4.Learned Counsel Ms. Omalla in submitting on behalf of the Appellant gave a factual background and identified eight issues for determination, which this court has endeavored to briefly capture hereunder. 5.On the first issue, learned counsel submitted that it is not in dispute that a first DNA test was conducted at Pathologists Lancet Kenya by consent of the parties and their respective families. That test conclusively excluded the Appellant as the biological father of the Minor. A subsequent court-sanctioned DNA test at the Government Chemist Nairobi yielded the same result, once again excluding the Appellant as the biological father. 6.It is submitted for the Appellant that, in his Replying Affidavit sworn on 28th April 2025 and in his written submissions dated 10th June 2025, the Appellant expressly drew the Trial Court's attention to the existence of the Lancet test, annexed the report, and specifically argued that the Respondent had not demonstrated any fraud, irregularity or impropriety in either test; that both institutions involved were reputable, professional and independent; that repeated testing would amount to harassment and a violation of his privacy and dignity; and that prolonging the matter would cause emotional uncertainty and undermine the best interests of the Minor. 7.Ms. Omalla cited the decision in ER v. MW (2025) KEHC 647 (KLR), where the High Court held that ordering a further DNA test in such circumstances is erroneous. Counsel further relied on Municipal Council of Thika v Elizabeth Wambui Kamacha [2013] KEHC 3016 (KLR), for the proposition that it is the duty of the trial court to consider and evaluate the entire evidence on record and that failure to consider the Appellant's duly filed written submissions constitutes an error of law. Additionally, counsel invoked HA v LB [2024] KEHC 3933 (KLR), to underscore that this Honorable Court, as a first appellate court, is the final court on matters of fact and is entitled and indeed obligated to re-evaluate the evidence and arrive at its own independent conclusion. 8.Moving to the next issue, it is submitted for the Appellant that the Trial Court's finding that the Respondent's allegations regarding the integrity of the DNA testing process had not been countermanded is wholly inconsistent with the record. Learned counsel Ms. Omalla submitted that the Appellant expressly addressed each of the allegations contained in paragraphs 12 to 36 of his Replying Affidavit sworn on 28th April 2025. That where allegations were wholly unfounded and scandalous, the Appellant categorically denied them; where they amounted to bare assertions without evidentiary support, the Appellant properly put the Respondent to strict proof thereof in accordance with Sections 107 to 109 of the Evidence Act, Cap 80. 9.It is submitted for the Appellant that the Appellant specifically denied the allegations of fraud, collusion and impropriety at paragraphs 19 to 25 of the Affidavit, pointing out that no CCTV footage, third-party witness statements or expert report had been adduced to substantiate those claims. He expressly denied ever submitting additional documents at the Government Chemist reception. He further rebutted the allegation that the Government Chemist report was a replica of the Lancet results, pointing out that no forensic comparison had been presented to sustain such a grave allegation. He addressed the sample collection venue and the alleged animated chat with staff, denied the characterization of his resemblance to the Minor as scientifically relevant, and challenged the cost implications and additional allegations regarding his conduct in the USA. 10.Despite this detailed rebuttal in both affidavit evidence and written submissions, Ms. Omalla submitted, the Trial Court nevertheless held the allegations to be uncontroverted, which finding was plainly erroneous as it ignored the record, misstated the Appellant's case, and amounted to a misdirection in both fact and law. In support of that position, she relied on the cases of Daniel Kenga Katana & 4 others v Dzitu Toto Bokole & 3 others [2022] KEELC 1785 (KLR) and Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR), both of which affirm that an uncontroverted allegation does not automatically amount to proof and that a party must still discharge the evidential burden, and further on Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] KEHC 1362 (KLR), for the principle that unchallenged evidence cannot be accepted at face value without proper interrogation. 11.On the third issue, learned counsel Ms. Omalla submitted that, before the Trial Court, the Appellant's case was clear: the Respondent's allegations of fraud, irregularity and impropriety in the conduct of the DNA testing were mere assertions unsupported by evidence. The Appellant Invoked Sections 107 to 109 of the Evidence Act, Cap 80, which codify the principle that he who alleges must prove. It is submitted for the Appellant that it was the Respondent who alleged fraud, irregularity and procedural impropriety, yet the Respondent failed to adduce any CCTV footage, third-party witness statements, forensic comparison of the DNA reports or expert testimony to prove those serious allegations. 12.On whether the trial court properly invoked its review jurisdiction, Learned Counsel submitted that that the Trial Court framed the first issue for determination as the powers of the court to grant review in disputed paternity results, yet, while acknowledging that the application before it was one for review, the Court declined to anchor its reasoning on Order 45 of the Civil Procedure Rules, which governs the circumstances under which review may be granted. Instead, the Court invoked its inherent jurisdiction and discretion on the basis that it was necessary to do justice between the parties. Learned counsel Ms. Omalla submitted that this approach was fundamentally erroneous because, once the Court framed the issue as one of review, it was bound to apply the governing legal test. 13.It is submitted for the appellant that review may only be granted on three narrow grounds, namely: discovery of new and important evidence not available despite due diligence; an error apparent on the face of the record; or other sufficient reason. None of these grounds were demonstrated, as the Respondent's application rested solely on dissatisfaction with the second DNA test and unsubstantiated allegations against the Appellant and the testing facility. 14.Learned counsel Ms. Omalla submitted that the Trial Magistrate justified the order for a third DNA test on the basis that paternity tests in Kenya do not have reputation for being fool proof and that courts have established a different outcome upon a retest. This sweeping statement, Ms. Omalla submitted, is unsupported by judicial precedent, empirical evidence or matters capable of judicial notice, and unjustifiably undermines the credibility of DNA testing as a scientific tool for determining paternity. 15.Ms. Omalla further submitted that if the Trial Court's own opinion that DNA tests in Kenya do not have reputation for being fool proof holds true, it would be logically impossible to justify ordering a third test conducted by the same institution, Government Chemist, even at a different branch. The internal contradiction in the Trial Court's reasoning, she submitted, further exposes the arbitrariness of the impugned Ruling. 16.Learned counsel cited the decisions in BAY v ABG & another [2023] KEHC 25995 (KLR), In re Estate of MKK (Deceased) [2024] KEHC 13494 (KLR), In re Estate of KC (Deceased) [2024] KEHC 11205 (KLR), and DNM v JK [2016] KEHC 3180 (KLR), all of which affirm DNA testing as carrying a high degree of accuracy approaching 99.9% and as the surest method of determining paternity conclusively. 17.On whether the Trial Court erred by allowing the Respondent to prescribe the location and designate a specific officer to conduct the DNA test, learned counsel submitted that in both his Replying Affidavit and his written submissions, the Appellant expressly opposed the Respondent's attempt to dictate the facility and the officer who would conduct the DNA test. Learned counsel Ms. Omalla submitted that the Appellant described such a proposal as unprocedural and overreaching, warned that it would call into question the impartiality of the process, and cautioned that if the Respondent were allowed to select the facility and practitioner, he would be equally justified in doubting that process just as the Respondent had doubted the first two. 18.That despite those clear objections, the Trial Court adopted the Respondent's proposal in entirety, prescribing both Government Chemist Kisumu and naming Polycarp Lutta specifically. Ms. Omalla submitted that this directive not only ignored the Appellant's reasoned objections but also usurped the institutional independence of the Government Chemist, which is mandated to allocate officers and administer procedures according to its own professional standards. That the Court never gave any thought to whether Dr. Lutta was even an officer at the alleged facility, whether he was qualified to conduct such a test, or whether he would be willing to undertake the exercise having been ordered to do so without prior notice. 19.In support of that position, counsel relied on CW v BG [2019] KEHC 2841 (KLR) for the principle of natural justice that no order can be made or enforced against any person who is not a party to the proceedings and who has not been given an opportunity to be heard, and on Brian Onyango Moses & 5 others v Vice Chancellor, Kisii University & 3 others [2017] KEHC 4819 (KLR), cautioning against courts' unwarranted interference with independent institutions. 20.On the best interests of the child, Learned Counsel submitted that in the impugned Ruling, the Trial Court held that there is a constitutional imperative to special and biased protection of the child's best interests as against the rights of the parents, which it treated as inferior, and further reasoned that the court is permitted even if manifestly unfair on the parents to give any orders to protect the child even at great cost, loss, disadvantage or inconvenience of any parent. It is submitted for the Appellant that this formulation elevated the best interests principle into an absolute standard that automatically overrides all other rights, which is contrary to the constitutional framework and to binding authority. 21.Ms. Omalla submitted that the Appellant, before the Trial Court, directly challenged this position and argued that subjecting the Minor to repeated DNA testing after two conclusive exclusions would not advance her welfare but would instead expose her to psychological distress while violating the Appellant's constitutional rights to dignity, privacy and bodily integrity under Articles 28 and 31, rights which are fundamental and can only be limited in exceptional circumstances under Article 24. 22.In support of that position, counsel relied on MAK v RMAA & 4 others [2023] KESC 27 (KLR), where the Supreme Court held that the best interests principle is intended to secure the full enjoyment of rights, not to eclipse or nullify the rights of others, and that parental rights cannot be ignored; on PKM v Senior Principal Magistrate Children's Court at Nairobi; JW (Interested Party) [2014] KEHC 7488 (KLR), emphasizing that courts must strike a balance between the child's welfare and the rights of other parties as protected under the Constitution; and on EWG v JMN & another [2017] KEHC 688 (KLR), where the Court held that compelling a non-consenting adult to submit to DNA testing against his will amounts to a violation of rights under Articles 28 and 31. 23.On the final issue, it is submitted for the Appellant that the Trial Court completely downplayed the serious and documented prejudice that the Appellant had demonstrated before it. Learned counsel Ms. Omalla submitted that the Appellant expressly showed that he had incurred heavy financial costs, including two international trips from the United States of America to Kenya to undertake DNA tests, both of which conclusively excluded him as the biological father. He highlighted the intrusion into his dignity, privacy and bodily integrity, as well as the prolonged emotional uncertainty. Rather than address these genuine hardships, the Trial Court dismissed them as mere costs and inconvenience while elevating speculative concerns about lost kinship and amenities. 24.In sum, learned counsel submitted that this Appeal arises not from the absence of scientific truth but from the Respondent's dissatisfaction with it. Two separate and independent DNA tests, conducted by reputable institutions, have conclusively excluded the Appellant as the biological father of the Minor. No evidence of fraud, tampering or irregularity has been presented to impeach those results. The Application before the Trial Court was therefore a fishing expedition, unsupported by law or fact, and calculated only to prolong litigation. Respondent’s submissions 25.Learned counsel Mr. Rotuk, appearing for the Respondent, opened by raising a preliminary point going to the very competence of the Appeal before this Honorable Court. It is submitted for the Respondent that the Appeal is presently unripe for litigation at the appellate level. The gravitas of the issue before the court has been narrowed down by this Court to whether the lower court's directions for a retest are necessary, and it is the Respondent's submission that the trial court has not yet concluded its processes of ascertaining the paternity of the minor. Mr. Rotuk submitted that it is only after the trial court has made a final determination on paternity that the Appellant can properly ground substantive grounds of appeal, and this Court should therefore find that the matter is prematurely before it. 26.It is submitted for the Respondent that the Appellant has worked hard to make sensational claims of a third test when in truth there is only one valid test on record. Learned counsel Mr. Rotuk submitted that the first test conducted at Pathologists Lancet Kenya was a private, unsupervised test which was contested at the trial court, which ruled it to be of zero judicial value and ordered the Government Chemist test in its place. In those circumstances, Mr. Rotuk submitted, the only valid result on record is the Government Chemist Nairobi test, and the retest directed by the trial court is therefore properly characterized as a second test, not a third. The Respondent accordingly invites this Court to reject the Appellant's framing of the matter. 27.Learned counsel Mr. Rotuk submitted that the context of this matter is critical and distinguishes it from ordinary paternity disputes. It is submitted for the Respondent that the parties are presently a family living together in the subsistence of a marriage that commenced on 31st December 2020, and that the minor's birth certificate bears the Appellant's own name. The Appellant does not deny the child resembles him, does not deny being intimate with the Respondent at the material time, and does not deny performing his parental duties, notwithstanding his residence in the United States for most of the time. Mr. Rotuk submitted that in such circumstances the standard must be held to a higher level, almost approaching beyond reasonable doubt, before a child of a subsisting marriage and family is condemned to estrangement from half her heritage. In support of that position, he relied on ZAK & another v MA & another [2013] KEHC 6007 (KLR), for the principle that an Appellant of this nature is a father in law in loco parentis, and on DWF v DNF & another (Civil Appeal E073 of 2022), justifying the application of the most favourable law to the minor where rights are in contention. 28.It is submitted for the Respondent that the trial court was not conducting a review of any prior decision but was properly exercising its ongoing supervisory mandate over a court-sanctioned paternity process. Learned counsel Mr. Rotuk submitted that the duty of ascertaining the paternity of the minor is placed on the court and not outsourced to the Government Chemist; the court may accept or reject test results even on its own motion and remains at liberty to make a ruling against such results. Being a court process, the trial court was within its own powers to order a retest where the presiding officer considered that credible doubts had been raised sufficient to exercise caution before passing final judgment. 29.Mr. Rotuk further submitted that the Appellant has not demonstrated how the exercise of discretion by the trial court was so manifestly unjust as to warrant appellate interference. It is submitted for the Respondent that mere dissatisfaction with a favourable exercise of discretion is not a ground for setting aside a decision, and this Court may only interfere on three grounds: that the decision is contrary to law, that it failed to determine some issue of law, or that there is a substantial error or defect in procedure. None of those grounds have been made out. In support of that position, counsel relied on Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR and on Nyakundi J in PC v JMZ [2020] eKLR, where the court held that there was no error on the face of the record or excess of jurisdiction or application of wrong principles by the trial Magistrate in ordering a DNA test on the basis of the prima facie evidence before the court 30.On the best interests of the minor, Learned counsel Mr. Rotuk submitted that it is constitutionally, legally and morally required that a court of law protect the interests of the minor even in open bias and favoritism and even discrimination against the parent adults. It is submitted for the Respondent that any doubt in children's matters with an iota of credibility must be ruled in favour of the minor, and the presiding officer was therefore right to seek the retest before safely passing judgment. Mr. Rotuk submitted that it is no prejudice to the Appellant to undergo additional tests to enable the court to arrive at an accurate finding through the available legal devices, particularly where the child stands to lose half her heritage if the determination is made on the basis of a single suspicious test. 31.In conclusion, it is submitted for the Respondent that the trial court has one test on record and has ordered just one more test in a retest to satisfy itself that there was no error in the first test. There is nothing like three tests or a third test directed by the trial court. Learned counsel Mr. Rotuk accordingly urged this Honorable Court to look at this matter in the totality of the circumstances, find that the present Appeal is unmerited and presently unripe, and dismiss it accordingly, so that the trial court may be allowed to run its processes to their conclusion after which the baton can properly come to this appellate court in seamless judicial progression. Analysis and determination 32.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. I am guided by the decisions in Peters v Sunday Post Limited [1958] EA 424 and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, which remain the authoritative statements on the duty of a first appellate court in this jurisdiction. Accordingly, while this court has the power to depart from the findings of the trial court, it will do so only where such findings are based on no evidence, founded on a misapprehension of the evidence, or where the trial court has acted on wrong principles of law. 33.It is in Kiilu & Another-v- Republic (2005) 1 KLR 174 where the Court of Appeal stated: -“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weight conflicting evidence and draw its own conclusions.It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion. It must itself make its own finding. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had advantage of hearing and seeing the witnesses.” 34.Having reviewed the appeal and the written submissions filed by both parties, three issues commend themselves for determination: first, whether the trial court properly exercised jurisdiction and judicial discretion in ordering another of the paternity of the minor; second, whether the trial court erred in the specific terms of the order it issued; and third, what orders are appropriate. Whether the Trial Court Properly Exercised Jurisdiction and Judicial Discretion in Ordering a Retest 35.This issue captures the bulk of the Appellant's grounds of appeal, namely: whether the trial court was bound to apply the Order 45 review framework; whether it improperly shifted the evidentiary burden; whether it erred in disregarding the Lancet test; whether it undermined the established jurisprudence on the reliability of DNA testing; and whether it misapplied the best interests principle. These grounds are all, at their root, an attack on the trial court's decision to order a further test, and they are best resolved together. 36.The starting point is the proper legal foundation for the jurisdiction of the trial court to order and regulate a DNA test in proceedings of this nature. Section 97 of the Children Act provides that when considering any question with respect to a child under that Act, the court may summon and direct any person to prepare and present to it a report or statement containing such information in respect of a child as the court may direct. For avoidance of doubt, the provisions of section 97 are reproduced hereunder:“ 97.Power of Court to order production of reports (1)When considering any question with respect to a child under this Act, the Court may summon and direct any person to prepare and present to it a report or statement containing such information in respect of a child as the Court may direct.(2)Without prejudice to the provisions in this Act or any other written law, the Court may take into account—(a)Any statement contained in the report referred to in subsection (1); or(b)Any evidence given in respect of the matters referred to in the report and in so far as the statement or evidence is, in the opinion of the Court, relevant to any matter in issue before the Court.(3)Where the Court orders or summons an expert pursuant to subsection (1), a party to the proceedings shall be given an opportunity to submit their views before the court makes an order.” 37.Section 97(2) further provides that the court may take into account any statement contained in such a report and any evidence given in respect of the matters referred to therein, in so far as that statement or evidence is, in the opinion of the court, relevant to any matter in issue. There can be no doubt that a DNA test report falls squarely within the scope of that provision. It is a report directed to a question with respect to a child, namely the question of paternity, and its content is plainly relevant to the matter in issue before the court. The jurisdiction of the trial court to order, supervise, and regulate the conduct of the DNA process was therefore firmly grounded in statute and not in any expansion of powers beyond what the law confers. 38.It is also important to appreciate why the law attaches such significance to the determination of paternity. Article 53(1)(e) of the Constitution of Kenya 2010 guarantees every child the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether or not they are married to each other. Article 53(2) further provides that a child's best interests are of paramount importance in every matter concerning the child. Section 6(1) of the Children Act reinforces this by providing that every child shall have an inherent right to. The common thread weaving through these provisions is the notion of parental responsibility towards children and the imperative that where parentage is contested, it must be conclusively established. 39.In the case of Biwott v Jerotich & 4 others [2025] KEHC 12005 (KLR), the court observed that:“……… the burden of parental responsibility does not come light; it is almost a lifetime burden and that is why a court of law must be absolutely certain that the person at whose door the buck stops is none other than the parent of the child in issue.” 40.The Appellant's most technically constructed argument is that the trial court, having framed the first issue for determination as one of review of disputed paternity results, was bound to apply the framework governing review under Order 45 of the Civil Procedure Rules, which permits review only on three narrow grounds: discovery of new and important evidence not previously available despite due diligence; an error apparent on the face of the record; or other sufficient reason. Since none of those grounds was demonstrated, the Appellant submits, the trial court lacked jurisdiction and the discretion it exercised was arbitrary. This argument in my view, though carefully curated, proceeds from a mistaken characterization of what the trial court was actually doing. The DNA test ordered at the Government Chemist Nairobi was not an independent act of a third party whose results were placed before the trial court as evidence in an adversarial hearing. It was a process ordered, and mandated by the court itself, as part of its ongoing exercise of judicial authority over a question of paternity that remained alive and unresolved before it. 41.In those circumstances, what the trial court was doing when it considered the Respondent's application was not reviewing its own earlier decision within the meaning of Order 45. It was exercising a continuing supervisory jurisdiction under section 97 of the Children Act over a process it had itself initiated and controlled. Order 45 is concerned with the finality of judicial decisions and the narrow circumstances in which a court may reconsider what it has already adjudicated. Where a court has ordered a procedural step that it has not yet accepted as dispositive of the issue before it, it retains full authority to regulate and if necessary revisit that process in the interests of justice. The trial court therefore had jurisdiction to entertain the Respondent's application, and as such the first limb of this ground fails. 42.Turning to the question of the legal threshold for ordering a further test, the law has been developed steadily through a number of decisions that this court finds persuasive. In the Nairobi High Court Constitutional Petition No. 138 of 2012, PKM v Senior Principal Magistrates Court at Nairobi, Lenaola J. as he then was, held that:“…there must always be a balance between the right to privacy of a person not to submit himself forcibly to medical examination and the right of a child to know his parents. The balance is delicate and must be looked at in the specific circumstances of each case.” 43.In the same decision, the learned judge cited with approval the Indian case of Bhabani Prasad Jena v Convener Sec Orissa, Civil Appeal Nos. 6222-6223 of 2010, where it was held that:“The Court must reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by court as a matter of course or in a routine manner, whenever such request is made. The court has to consider diverse aspects…pros and cons of such order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test…it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have a roving inquiry, there must be a strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test.” 44.These principles were further affirmed in Kakamega High Court Miscellaneous Application No. 105 of 2004, MW v KC, where Kariuki J. as he then was, distilled the applicable conditions to include that the applicant must show sufficient cause and a likelihood that the respondent could be the father of the child, and that the respondent's refusal to submit to testing would deprive the child of the possible enjoyment of constitutional rights and benefits. Ngaah J. synthesised these authorities in Biwott v Jerotich & 4 others [2025] KEHC 12005 (KLR) and stated the position thus: 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 the child than by a paternity test, and where the applicant has made out a prima facie case for such a test, a court of law will ordinarily make an order for such a test. 45.It is within this framework that the trial court's decision must be assessed. The parties are presently a family living in the subsistence of a marriage that commenced on 31st December 2020. The minor's birth certificate bears the Appellant's name. The Appellant does not deny that the child resembles him, does not deny being intimate with the Respondent at the material time, and does not deny performing parental duties toward the child notwithstanding his residence in the United States for much of the relevant period. These are not the circumstances of a stranger being visited with a bare and unsubstantiated claim of fatherhood. These are the circumstances of a husband, a registered father, and a man who has by his own conduct assumed parental responsibility, now seeking to sever that relationship entirely on the basis of two DNA tests whose integrity has been placed in issue before the court. Having perused through the entire record, the prima facie case for further inquiry was therefore clearly established. The trial court was not acting on a bare whim. It was acting on a body of circumstantial material that, taken in its totality, justified caution before the matter was brought to a conclusion. 46.The Appellant's related argument that the trial court improperly shifted the evidentiary burden to him by treating the Respondent's allegations as uncontroverted fares no better on proper analysis. It is accurate, as a general proposition, that Sections 107 to 109 of the Evidence Act, Cap 80 place the burden of proof squarely on the party asserting a fact and that fraud, in particular, must be pleaded with specificity and proved to a standard above the ordinary balance of probabilities. These are not ordinary civil proceedings in which one party asserts a legal right and must establish every element of that claim before any relief is granted. These are proceedings under the Children Act in which the court's overarching duty is to ascertain the truth about the parentage of a child and to protect that child's interests. The trial court was not making a finding that fraud had been proved against the Appellant. It was finding that sufficient credible doubt had been raised to justify a further controlled fresh inquiry, and those are fundamentally different exercises. 47.On the best interests of the child, the Appellant submits that the trial court elevated the principle under Article 53(2) of the Constitution into an absolute standard that automatically overrides his fundamental rights to dignity, privacy and bodily integrity under Articles 28 and 31. The Supreme Court in MAK v RMAA & 4 others [2023] KESC 27 (KLR) stated the correct position with precision, holding that the best interests of the child are the paramount consideration and the determining factor when making a decision on the child, but they are not absolute, and that parental rights are to be balanced rather than eclipsed, and that no right is to be compromised by a negative interpretation of the child's best interests. 48.This court accepts that the Appellant has suffered real and documented hardship. Two intrusive procedures on his body, two international journeys from the United States of America undertaken at considerable personal expense, and prolonged emotional uncertainty over a matter as fundamental as paternity are not trivial burdens and the trial court's characterization of them as mere costs and inconvenience was, in this court's assessment, somewhat dismissive of genuine constitutional interests. That said, engagement of a constitutional right does not automatically render unconstitutional the order that engages it. Article 24 of the Constitution permits limitation of rights where the limitation is reasonable and justifiable, having regard to proportionality and the importance of the purpose served. 49.In ANM & RMM v FPA & Attorney General [2019] KEHC 7369 (KLR), the court held that before the court can direct parties to undergo DNA testing, a prima facie case must be established, and that ordering a party to provide DNA is an intrusion into bodily integrity and privacy which are constitutionally protected rights. That principle is not in dispute. The question is whether the intrusion in this particular case is justified. This court is satisfied that it is. The purpose served is of the highest order: a conclusive determination of the parentage of a child of a subsisting marriage who bears the Appellant's name and who has been cared for and acknowledged by him as his own, and whose permanent exclusion from half her heritage on the basis of a contested process would carry consequences that are severe and irreversible. Weighed against the burden of one further test, those considerations do not tip the balance in the Appellant's favour. The trial court's conclusion was within the range of permissible judicial responses to the circumstances before it. The primary challenge to the decision to order a retest therefore fails in its entirety. Whether the Trial Court Erred in the Specific Terms of the Order 50.The position is, however, materially different with respect to the specific directions contained in the impugned Ruling. The trial court directed that the retest be conducted personally by the senior most officer responsible for paternity tests at Government Chemist Kisumu and went further to specifically name Polycarp Lutta as that officer, imposing upon him a personal accountability to report directly to the court. 51.There is a more fundamental concern with the directions contained in paragraphs (d) and (e) of the impugned Ruling that goes beyond questions of party status. The trial court, in prescribing that the retest be conducted personally by the senior most officer responsible for paternity tests and in going further to name Polycarp Lutta specifically, assumed a degree of control over the internal operations of the Government Chemist that a court of law ought not to exercise. The Government Chemist is an independent institution with its own established protocols for the allocation of professional responsibilities, the assignment of personnel, and the administration of scientific procedures. Those protocols exist precisely to guarantee the integrity and impartiality of the forensic process, and it is that institutional independence, not the identity of any particular officer, that lends scientific evidence its credibility and probative value before a court. 52.When a court descends into the internal management of such an institution by directing which specific officer must personally conduct a test and must personally account for its outcome, it does not enhance the integrity of the process; it might compromise it, because the designated officer is then perceived to be acting not on the strength of institutional standards but under the personal direction of the court in response to the preferences of one of the litigants. As was cautioned in Nyongesa and 4 Others vs. Egerton University [1990] KLR 962, courts are very loath to interfere with the internal workings of independent institutions, and that judicial restraint is not a concession of authority but a recognition that justice is best served when professional bodies are permitted to discharge their functions according to their own established competencies. The specific directions naming Dr. Lutta and imposing personal obligations upon him therefore disclose an impermissible overreach of judicial authority into the domain of institutional independence and cannot stand. 53.The opinion of the expert of the DNA report is evidence which is admissible under Section 48 of the Evidence Act. So the ground on which the opinion is arrived at is also relevant under Section 107(1) 108 & 109 of the Evidence Act on the standard and burden of proof of such interlocking issues and paternity. There are two experts who have already taken samples to come up with a DNA report but it appears that this being a matter of molecular biology evidence tendered by them ought to have been quite convincing but trial court thought otherwise and made an order for a 3rd expert opinion of the DNA on paternity of this controversial issue between he parties in this litigation. The result of a genuine DNA test is said to be scientifically accurate, but even that is not enough to escape from the conclusiveness of the law on such matters. For example, if a husband and a wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband the conclusiveness of the law would remain un-rebuttable. This may look hard for the husband who would be compelled to bear the fatherhood of a child who is not biological his own. Notwithstanding that position but even such a case the law tends to lean in favour of the innocent child from being bastardized if his or her mother and her spouse were living together during the time of conception. This looks like the question before court. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in light of what is meant by access or non-access of the two cohabiting adults holding themselves out as intimate partners or they do qualify to be husband and wife under the Marriage Act of Kenya. 54.The Appellant has invited the court not to wish away the issue of privacy, dignity, and self-incrimination which is indeed a subject of debate for a long time in Kenyan Judiciary. It should be born in mind that given our constitutional architecture on protection and guarantees provided for in the Bill of Rights the submissions of DNA specimen or handwriting, or signature prints of the palm, finger, or foot for scientific evidence under Section 48 of the Evidence Act cannot be termed as a violation of the constitution in terms of Article 19, 20, 21 22, 24, 27, 28, & 31 of the Supreme Charter of the Republic of Kenya. On the other hand, in construing this constitution imperatives on fundamental rights and freedoms if the technic of extracting the samples for DNA profile match is invasive consent may be necessary. The appeal in this matter has arisen as a result of the proceedings currently pending before the trial court in my view it is better placed in exercising discretion to obtain the best evidence which includes expert opinions on the cause of action. It would be therefore within the jurisdiction of that court to exercise discretion judiciously on matters of controversy as between the Appellant and the Respondent. In the event there is an apparent conflict between the right to privacy of a person who is also a litigant before a court of law and required to submit samples for scientific analysis but invokes his fundamental rights and freedoms so as not to submit himself or herself to medical examination the court must exercise its discretion only after balancing the interests of both parties to the suit and on due considerations make a just decision in the matter whether the DNA test is eminently needed. In this specific case, the Appellant is aggrieved with the order of submitting samples to a third molecular biology expert to come up with a report on the paternity issue. 55.The law is now settled when it comes to an Appellate Court exercising jurisdiction in so far as matters pending before the subordinate courts duly constituted under Article 50 (1) of the constitution. Just as a matter of emphasis this is the law that (i) A court on appeal will not normally interfere with a fining of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did. See Mwangi and another v Wambugu (1982) LLR 76 (CAK). Marube v Nyamuro (1983) LLR (CAK) (ii) In realm of pure fact the advantage which the judge derives from seeing and hearing the witness must always be respected by an appellate court. At the same time the importance played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum from where credibility is crucial and the appellate court can hardly ever interefere, to at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision56.In matters of this nature, it is necessary that expert evidence presented to the court should be and should be seen on be the independent product of the expert uninfluenced as to form or contempt by the exigencies of litigation. See whitehouse v Jordan (1981) ALL ER 267 at 276. 57.The fundamental issue in this appeal and even in the lower court is about paternity and legitimacy of a minor born within the cohabitation of the relationship between the Appellant and the Respondent. What does this mean essentially? Paternity determination is an important aspect of personal identification. Paternity and legitimacy are the socio-legal issues that have been discussed in the judicial realm for a long time. Scientific advances must go along with the rules of law. Here it must be taken into consideration that legitimacy is a legal phenomenon while paternity is associated with the genealogy of a child that may be determined by the DNA test, legitimacy has been protected socially and legally both. Thus this legal provision authorizes the father as a social father, while the DNA test identifies only the putative father of the child (Patel 2013). 58.Therefore, there are two interlocking issues legally. Legitimacy and marriage or cohabitation as between the Appellant and the Respondent. The learned Magistrate seized of the matter has the discretion to interpret the law with regard to the issues currently pending for determination. I proceed from a practical standpoint as a practitioner in the bench to provide and account of discretion as a necessary feature legal adjudication. My argument takes the following typologies.a.A typical rational legal system has an interpretative code with more than an interpretative directiveb.A typical rational legal system contains the non-liquent rulec.Necessarily if a rational legal system has an interpretative code with more than one interpretative directive and it contains their non-liquent rule then in this system legal interpretation is discretionaryd.Thus in a typical rational legal system, legal interpretation is discretionary. 59.The doctrine of judicial discretion refers to the power of a judge or court to make decisions based on their own judgement reasoning and conscience, rather than being bound by rigid, inflexible rules in every scenario. This discretion allows courts to tailor decisions to the specific facts of a case, ensuring justice and equity, particularly in areas where the law cannot foresee every eventuality. Judicial discretion helps make sense of the law. 60.I have labored and anxiously considered the entire evidential material and the touchstone of the memorandum of appeal in so far as the discretion exercised by the learned trial magistrate in issuing a declaration that a third molecular biology scientific expert opinion in the form of paternity DNA test be conducted by the government analyst Kisumu Branch with specifics that one Dr. Lutta be the one to assemble the samples and share a third DNA report with the court. These specific directions are, however, severable from the remainder of the order. The core relief, being a court-supervised retest at Government Chemist Kisumu, remains legally sound and factually justified. The infirmity is confined to the specific personal directions regarding Dr. Lutta, and it is those directions alone that warrant the intervention of this court. To the extent that the Appellant's sixth ground of appeal challenges the designation of a specific officer, it succeeds. In all other respects, the appeal fails. 61.In the end, the following orders shall abide:a.That the appeal is dismissed to the extent that the Appellant sought to set aside the order for a court-supervised retest at Government Chemist Kisumu.b.That the directions naming Dr. Polycarp Lutta personally and imposing personal accountability upon him are set aside. In their place, the Officer in Charge of Government Chemist Kisumu is directed to assign appropriately qualified personnel to conduct the retest in accordance with established institutional protocols, and to transmit the results directly to the trial court within sixty days of the date of this judgment.c.That in the alternative the learned trial Magistrate be at liberty to issue summons to the experts who prepared the controversial DNA Profile Reports for the very primary purpose of appreciation the evidential variances impeaching the content and text of the expert opinions as premised by the parties to the suit.d.That for conclusiveness of this matter, the expert opinion so desirously sought by the parties and the court in the alternative can be undertaken by KEMRI who also happen to have a branch at Daima Towers Eldoret,e.In all other respects, the impugned Ruling of the trial court stands and is hereby affirmed.f.Given the nature of these proceedings and the interests of the minor at their centre, each party shall bear their own costs of this appeal. 62.Orders accordingly. DATED SIGNED AND DELIVERED AT ELDORET THIS 10TH DAY OF APRIL, 2026…………………....……..…………R. NYAKUNDIJUDGE