Rose Wambui Kiarie v Jane Njeri Ngaruiya

The Court re-evaluated the evidence as a first appellate court. The sons had no birth certificates; the first-born was named after the respondent's father, casting aspersion on paternity under Kikuyu customary naming. No forensic or DNA evidence established blood relationship. Provincial administration proceedings did not establish the children were the deceased's, and the deceased had denied the claim. It was incumbent on the respondent or the adult children to establish paternity, and they failed to do so.

Section 29 defines dependants and section 26 permits a court, on application by or on behalf of a dependant, to order reasonable provision. The duty lies on any person claiming to be a dependant to apply under section 26 and establish the nature and extent of dependency. In this case no application was filed, the issue was not pleaded, and no evidence was adduced; the parties' framed issues did not include dependency.

The Court adopted the general rule from Maithene Malindi and IEBC v Stephen Mutinda Mule that parties are bound by their pleadings, which limit the issues a trial court may pronounce on. The exception in Odd Jobs v Mubia permits a decision on an unpleaded issue only where it appears the issue was left to the court for decision. Dependency was neither pleaded, framed as an issue, nor canvassed, so the trial court erred.

Relying on Abok James Odera & Associates v John Patrick Machira and Kenya Ports Authority v Kustron, the Court restated that on a first appeal it considers the evidence, evaluates it itself and draws its own conclusions, while bearing in mind it neither saw nor heard the witnesses and ruling only on the evidence on record without introducing extraneous matters.