[2021] KEHC 8119 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAMIRA

CIVIL APPEAL NO. E003 OF 2020

YMG......................................................................................APPELLANT

- VRS -

KN (Suing through his motherand next friendNKM)..RESPONDENT

{Being an appeal against the Ruling of Hon. M. C. Nyigei - SRM Nyamira dated and delivered on the 9th day of September 2020 in the original Nyamira Chief Magistrate’s Court Children Case No. 13 of 2016}

JUDGEMENT

This appeal challenges the ruling delivered by the trial court on 9th September 2020 which refused to review a judgement delivered on 15th November 2017 in which the appellant was ordered to pay monthly maintenance of Kshs. 8,000/= towards the maintenance of KN. The appellant did not appeal against the judgement but on 29th May 2019 he filed an application in which he sought to review, vacate and/or set aside the judgement. Among the issues raised in the application were that the respondent was represented in the matter by an unqualified person who was masquerading as an advocate. The appellant also contended that the DNA evidence relied on by the court to conclude that he was the father of the subject was shambolic and he required a second DNA to be conducted. The appellant also contended that the respondent did not demonstrate the contributions she made towards the upkeep.

That application was vehemently opposed and after considering the rival submissions the trial Magistrate (Hon. Nyigei) came to the conclusion that the application did not meet the threshold for review and opined that the applicant ought to have challenged the judgement and decree by way of appeal. The trial Magistrate observed that the application for review was not the right forum to determine whether the judgement violated constitutional principles.

The same issues raised in the application before the trial court are what make up the grounds of this appeal. This court directed that the appeal be canvassed by way of written submissions and the same were duly received.

Counsel for the appellant has reiterated the issues raised in the trial court namely representation by an unqualified person, paternity/DNA and non-contribution of the respondent to the maintenance of the child.

On her part the respondent has disputed that she was represented by an unqualified person and contended that her advocate at the trial was C. O. Nyamwange Advocate. She has also submitted that the paternity test/DNA was done in a government facility and the appellant was confirmed to be the father of the subject child. In regard to her own contribution, she alleged that she is not employed but the appellant is a teacher.

I have very carefully considered the rival submissions and the cases cited by Counsel for the appellant. I have also as the first appellate court considered the evidence in the court below as I am entitled to do. As I have stated the appellant did not appeal the judgement that found him liable to pay a sum of Kshs. 8,000/= every month towards the maintenance of the subject child. He did not therefore challenge the results of the paternity test filed in court on 7th December 2016. I agree with the trial Magistrate’s finding (Hon. Nyigei) that the issues raised in the application dated 9th September 2020 were not issues for review but issues for appeal as what was being challenged was the merit of the decision of the trial court. There indeed was no discovery of a new and important matter or error apparent on the face of the record or any other sufficient reason as provided under Order 45 Rule 1of theCivil Procedure Rules to warrant a review of the judgement. The allegation that Mr. Arumba who acted for the respondent in the initial stages of the proceedings was not a qualified advocate was not supported by evidence and it is still not supported even in this appeal. He who asserts must prove – (see Section 107 of the Evidence Act) and this case is no different. A mere assertion that one is not a qualified advocate does not suffice and nothing would have prevented the appellant from proving that fact. Order 45 Rule 3 (2) of theCivil Procedure Rules states that “an application premised on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation shall not be granted.” (Emphasis mine) The application did not have merit and in my view that application and this appeal are nothing more than an appeal against the judgement/decree delivered on 15th November 2017 through the back door so to speak. It is through the back door so to speak because it is being filed more than three years after the time limited for filing appeals to the High Court by Section 79 G of the Civil Procedure Actwithout first seeking leave. An appeal filed out of time without leave is incompetent.

In the premises I find no merit in the appeal and the same is dismissed with costs to the respondent. It is so ordered.

JUDGEMENT SIGNED, DATED AND DELIVERED AT NYAMIRA ELECTRONICALLY VIA MICROSOFT TEAMS THIS 25TH DAY OF MARCH 2021.

E. N. MAINA

JUDGE