[2022] KEHC 918 (KLR)
The High Court lacks jurisdiction to entertain the application for a DNA test in the absence of substantive proceedings before it. The issue of paternity and the request for a DNA test are already before the Children’s Court in ongoing proceedings between the same parties concerning the same child. The proper forum...
Source-derived case information.
- Citation
- [2022] KEHC 918 (KLR)
- Parties
- Applicant: NWM (Suing as the mother and Next Friend of CEM, a Minor); Respondent: CBHC
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case E013 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application struck out with costs to the respondent
- Judges
- DW Mbuteti
- Legal Topics
- Paternity Disputes, Dna Testing, Jurisdiction of Courts, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NWM (Suing as the mother and Next Friend of CEM, a Minor)
Applicant
CBHC
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to order a DNA test in the absence of substantive proceedings before it.
- 2 Whether the issue of paternity and the request for a DNA test should first be determined by the Children’s Court where substantive proceedings are ongoing.
Ratio Decidendi
The High Court lacks jurisdiction to entertain the application for a DNA test in the absence of substantive proceedings before it. The issue of paternity and the request for a DNA test are already before the Children’s Court in ongoing proceedings between the same parties concerning the same child. The proper forum for canvassing the issue of a DNA test is the Children’s Court, which has the requisite jurisdiction to determine such matters. Accordingly, the preliminary objection is upheld, and the application is struck out for want of jurisdiction and absence of substantive proceedings before the High Court.
Court Disposition
application struck out with costs to the respondent
Orders
- The chamber summons dated 09/06/2021 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
MISCELLANEOUS CIVIL CASE NO E013 OF 2021
NWM (Suing as the mother and Next Friend of CEM, a Minor).....................APPLICANT
VERSUS
CBHC..............................................................................................................RESPONDENT
R U L I N G
1. The Applicant herein, NWM, has sought by chamber summons dated 09/06/2021 the main order that the Respondent, CBHC, be “ordered to submit to a DNA test in order to determine whether he is the biological father of the subject minor, CEM.” There are other consequential orders sought. The application is supported by the affidavit of the Applicant annexed to the application.
2. The main ground for the application is that the issue of paternity of the minor has arisen in Nanyuki CM Children’s Case No E013 of 2021 between the same parties herein for assumption of parental responsibility by the Respondent and for the upkeep and maintenance of the child. It is said that in the said proceedings the Respondent (who is the defendant there) has denied that he is the father of the child.
3. In response to the present application the Respondent raised a preliminary objection by notice dated 15/06/2021. The point of law taken is that this court lacks jurisdiction to entertain the application because the same issue is before the Children’s Court in the aforesaid case.
4. There are no substantive proceedings before this court upon which the present application could be properly brought. It has also not been argued that the Children’s Court has no jurisdiction to order a DNA test; it is before that court where there are substantive proceedings between the same parties over the same child, and before which the same issue of paternity has arisen. Let the issue of a DNA test be first canvassed before the Children’s Court.
5. I will in the circumstances uphold the preliminary objection upon the ground that there are no substantive proceedings before this court upon which the application for a DNA test can be properly made.
6. In the result, the chamber summons dated 09/06/2021 is hereby stuck out with costs to the Respondent. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 30TH DAY OF MARCH 2022
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 31ST DAY OF MARCH 2022