PAN v EN (Civil Appeal 63 of 2019) [2025] KEHC 14364 (KLR) (3 June 2025) (Judgment) Neutral citation: [2025] KEHC 14364 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CIVIL APPEAL 63 OF 2019 NIO ADAGI, J JUNE 3, 2025 BETWEEN PAN ............................................................................................................ APPELLANT AND EN ........................................................................................................... RESPONDENT JUDGMENT 1. As I consider this appeal, I have confirmed from the record that the subject minor herein was born on 30/12/2008. He is now probably 22 years and 5 months old this year May and therefore no longer a child. This appeal emanates from the judgment of Hon. Eddah Agade, SRM in Kangundo Children’s case No. 8 of 2016. By Plaint dated 19/8/2016, the Respondent sued the Appellant seeking the following prayers: a. Monthly maintenance costs of Kshs.12,500/= until the needs of the minor change. b. Refund of the sum of Kshs.116,227/= being the maintenance of the minor since baby class to date. c. School fees and school related expenses per term of Kshs.10,000/= d. An order allowing the Plaintiff to perform DNA test e. Costs of the suit. 2. The Appellant denied the claim by his statement of defence dated 13/9/2016 and prayed for the Respondent’s suit to be dismissed. 3. The matter proceeded to a full hearing. The Respondent, the Appellant and the Appellant’s wife testified. In his judgment dated 28th March 2019 after hearing the main suit, the trial court allowed all the prayers as sought in the Plaint as follows: a. Monthly maintenance costs of Kshs.12,500.00 until the needs of the Minor change; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 1
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urt Assistant ·· 4. b) Refund of Kshs.116,227.00 being the maintenance cost of the Minor since baby class to the time of filing this suit; c) School fees and related expenses per term of Kshs.10,000.00; and d) Costs of the suit The trial court’s decision prompted this appeal vide Amended Memorandum of Appeal dated 8/3/2021. The Amended Memorandum of appeal sets out the following 9 grounds of appeal as follows: a. That the Honourable Magistrate erred in Law and in Fact in wholly ignoring provisions of Order 32 rule 1 of the Civil Procedure Rules. b. That the Honoruable Magistrate erred in Law and in Fact in wholly ignoring provisions of Order 32 rule 2 of the Civil Procedure Rules. c. That the Honourable Magistrate erred in Law and in Fact by wholly ignoring Legal Notice No. 77 (General Rules and Regulations of the Children's Act) on how a suit by Children should be filed. d. That the Honourable Magistrate erred in Law and in Fact by wholly ignoring an authority of the High Court sitting at Nairobi (Civil Appeal No. 77 of 2011). e. That the Honourable Magistrate erred in Law and in Fact in failing to dismiss the suit for maintenance and upkeep based on the forgoing. f. That the Honourable Magistrate erred in Law and in Fact by ignoring parental responsibility is equal. g. That the Honourable Magistrate erred in Law and in Fact by awarding the respondent her prayers without any Affidavit of means. h. That the Honourable Magistrate erred in Law and in Fact in finding that the appellant and the respondent were cohabiting without any evidence. i. That the Honoruable Magistrate erred in Law and in Fact in finding that the appellant is the father of the minor without any DNA testing. j. That the Honourable Magistrate erred in Law and in Fact in finding that the appellant had parental responsibility to the minor after it had been acquired and exercised by the late PMM (the respondent's husband till his demise on 11th January, 2013). k. That the Honourable Magistrate erred in Law and in Fact in finding that it would be in the best interests of the minor to introduce the appellant in his life as the father while he knows the father, the late PMM, passed away on 11th January, 2013. l. That the Honourable Magistrate erred in Law and in Fact in introducing the appellant to the life of the minor while the late PMM (the respondent's husband till his demise on 11th January, 2013) died knowing the minor was his son. m. That the Honourable Magistrate erred in Law and in Fact in awarding refund of costs which were never adduced in evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 2
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5. n. That the Honourable Magistrate erred in Law and in Fact in relying on receipts which were never produced and which are not stamped to order a refund. o. That the Honourable Magistrate erred in law and in fact in proceeding with a case which did not have proper Summons to Enter Appearance. The Appellant prays that the judgment delivered by the Principal Magistrate's Court at Kangundo on 28th March, 2018 be set aside and replaced with the decision of this court plus costs for the suit in the lower court and for this appeal. Respondent’s Case 6. The Respondent’s case, as pleaded was that during the year 2005, she and the Appellant both employees of the then City Council of Nairobi, currently City County of Nairobi started cohabiting together in Ruai as husband and wife and as a result of the said cohabitation the Respondent became pregnant and gave birth to the subject minor herein on 30/12/2008. In her testimony in court, the Respondent stated that they lived together in Joska and the minor was born when they were together. The Appellant had taken parental responsibility when the minor was born then abandoned 7. When the minor was born, the Appellant used to support him but he had now stopped after the Respondent and the Appellant stopped cohabiting. When the minor was 2 years old the Appellant left and stopped supporting the minor. It was the Respondent’s case that the Appellant had neglected and or failed to provide maintenance for the minor since they separated claiming the minor is not his child hence the Respondent prayed for an order allowing her to conduct DNA test to prove paternity. 8. The Respondent sought that the Appellant be compelled to meet half of the minor’s maintenance costs which she broke down as follows; a. Shelter Kshs.10,000/= b. Clothing Kshs.6,000/= c. Food Kshs.5,000/= d. House help Kshs.6,000/= e. Recreation or entertainment Kshs.5,000/= f. Others Kshs.4,000/= g. School fees per term plus education related expenses of Kshs.10,000/= per term 9. The Respondent also claimed monthly payment of Kshs.12,500 being half the minor’s maintenance costs plus a medical cover for the minor. 10. In addition, the Respondent claimed half the costs she incurred on the maintenance of the minor since birth to date as shown in the attached list of documents number ......(this was left blank). 11. The Respondent produced as exhibit a list of documents numbering 40. Appellant’s Case 12. The Appellant’s case was that he never married or cohabited with the Respondent and therefore they never separated at any one time. That on 11/9/2013, the Respondent reported this matter to the Children’s Department at the District Children’s Office in Athi River. The matter was considered and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 3
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her claim and plea rejected on allegation that the Appellant raped her and her reporting the matter after her husband’s death. 13. The Appellant stated that the Respondent was married to one PMM who died on 11/1/2013 whereas he was married to MNN. 14. The Appellant averred that he did not recognize the minor as his son but as PMM’s son and further that he had never supported or maintained the minor nor assumed any parental responsibility over him since he was born. 15. It was the Appellant’s case that the minor was born within the wedlock of the Respondent and her husband PMM (deceased) who took parental responsibility for eight (8) years before passing on. The Appellant’s position was that the Respondent took long to institute the suit since the minor had a father who had taken up parental responsibility. Besides, the Appellant is not named as the father of the minor in the minor’s Birth Certificate. 16. The Appellant further averred that the Respondent out of her own free will proposed to the Appellant that she wanted a baby boy with him as a sperm donor since she had sired only girls (four of them) and her husband was looking down upon her. That he was just an innocent sperm donor but little did he know that he was being trapped for the purpose of maintenance and supporting the Respondent and the children. The Appellant objected to the request for DNA testing to prove paternity terming it as unnecessary. 17. The Appellant contended that the Respondent had not provided any evidence of such expenditure of the maintenance refund or provided an affidavit of means or her pay slip to prove capacity and ability to pay. 18. The Appellant averred that the Respondent raising her son is not a commercial venture where refund is payable. The suit is a clear indication of fraud and extortion by the Respondent who was guided by commercial interests. The Appellant referred to paragraph 8 of the Plaint where the Respondent claimed for half the maintenance cost of the minor since birth to the time of filing the suit which is an acknowledgement that the Appellant never took up parental responsibility nor supported the minor. 19. Lastly, the Appellant denied the jurisdiction of the court in determining the suit since the Appellant resides and both work for gain in Nairobi the proper place of suing. 20. The court directed that the appeal be canvassed by way of written submissions. Through his advocate, the Appellant submitted that The Appellant’s counsel submits that the Respondent was represented by King’oo – Wanjau & Co. Advocates at the Lower court. On 28th June, 2022, the she changed advocates and was represented by Wanjiru Ann Wanja, Advocate. On 7th March, 2023, the Respondent representing herself. Currently, the she is being represented by the firm of Joseph Mwongela & Co. Advocates. They stated that they perused the e-filing portal but have not seen any document through which the said law firm joined this matter. Accordingly, they request anything the said firm filed be expunged for being improperly on record. Appellant’s Submissions 21. The Appellant submits that the judgment is ultra-vires Article 53(2) in that it is not in the best interests of the minor. 22. Reference is made at Pages 33 – 34 of the Record of Appeal that the minor was born on 30th December, 2008, when the Respondent was married to PMM and they (the Respondent, the minor and PMM) lived together as one happy family until 11th January, 2011, when unfortunately, PMM passed away. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 4
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23. The Appellant submits that for over 2 and ½ years PMM provided for and assumed parental responsibility for the minor herein. 24. After the demise of PMM, the Respondent continued providing for the minor until August, 2016 when she decided to take the Appellant to court. 25. That for 2 and ½ years, the minor believed the father was PMM. 26. It was submitted that after the death of PMM, the Respondent continued shielding the minor from the Appellant for 6 years (assuming the Appellant was the minor’s father). For 8 and 1/2 years, the Respondent had successfully shielded the minor from the Appellant, the minor has acquired interests (knowing PMM was his father) which the Appellant beg the court not to sacrifice at the alter of maintenance and upkeep. 27. It was submitted that the minor knows PMM as his father, if the Appellant is to contribute to the minor’s maintenance & upkeep, he’s also entitled to access the minor and spend time with the minor, which raises 3 serious problems; – (i). who are they going to tell him the Appellant is? (ii). How will the minor view the Respondent knowing that she was dishonest to his father? (iii). How will this revelation impact on the minor’s psychology? 28. The Appellant posed to ask, will compelling the Appellant, (assuming he is the minor’s father, which we deny) to pay maintenance & upkeep of the minor be in his best interests as compared to how he will start looking at his mother and the Appellant? 29. The Appellant’s counsel submitted that the minor here was almost an adult (16 years), children nowadays grow up faster than they did, know more things than they did and perceive things faster than they did. 30. It is submitted that if the Respondent has her way, this cause will do more harm than good to the minor, in fact he may end up resenting society for this, of which they in this case will be primarily liable. 31. The Appellant further submitted that the trial court disregarded mandatory provisions of Order 32 Rule 2(1) of the Civil Procedure Rules which is a mandatory provision on how suits on behalf of minors should be presented. 32. The Appellant invited this court to look at the Respondent’s pleadings & documents (page 6 – 12 of the record), and will be hard pressed to know that the suit at the trial court was one concerning a minor. 33. That this is an issue the Appellant objected to in the trial court and even gave an authority from the Nairobi High Court, Civil Appeal No. 77 of 2011: David Mboche V Grace Gathoni¸ where Hon. W. Musyoka, J. agreed with Hon. Ocharo PM who had dismissed a similar suit – The Learned Judge held that (pages 35 – 37 of the record of appeal); “ Children have no capacity to sue and pleadings must bring out that fact. Where pleadings do not bring out that fact then the suit is incompetent and the paramountary rule can not cure the incompetence”. 34. There was no overruling authority adduced before the trial court but sadly, the Lower Court opted to ignore the doctrine of precedent and also mandatory provisions of law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 5
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35. The Appellant submitted that it is also unfair that the trial court allowed receipts which were never produced nor stamped as required under Section 19 of the Stamp Duty Act and back dated maintenance & upkeep from baby class when another person was actually providing for the minor. 36. The Appellant prays that this court does agree with him, this suit was not and is still not in the best interests of the minor, in fact, the suit may have the opposite effect, a risk which we should not take. In conclusion, the court was urged to find that the Appellant has not acquired parental responsibility over the minor and to allow the appeal. Respondent’s Submissions 37. For her part, the Respondent submitted that the appeal should not be allowed since it fails to protect the best interests of the child, which are paramount and are clearly espoused and settled under Article 53(2) of the 2010 Constitution of Kenya as well as Section 8(3) of the Children's Act of 2022, which provides that: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The judgment of the lower court was rightly aimed at ensuring the provision of basic needs for the minor, a responsibility that falls on both parents. 38. The Respondent invited the court to take note that the Respondent had been originally represented by King'oo-Wanjau & Co advocates at the lower court, then by Wanjiru Ann Wanja, advocate, then she represented herself and now the firm of Joseph Mwongela & Company Advocates. They submit that Appellant's advocates request that anything filed by the current advocates on record to be expunged for being improperly in record. They submit that a notice of appointment of advocates for the law Firm of Joseph Mwongela & Co. Advocates to represent the Respondent was filed and received in court on the 27th of April, 2023, which renders paragraph 2(d) of the Appellant's submissions null and void. The Respondent had and has a right to be represented by Advocates of her choice. 39. The Respondent submits that the Appellant's argument that the judgement is ultra vires Article 53(2) is unfounded. The minor's best interests are served when both parents contribute to the child's maintenance and upkeep. They relied on the case of FSL v FNK [2022] eKLR where the honourable court stated that: “ Parental involvement by both parents in a child's life is critical for that child's wholesome development. The reality of life is that it is not always possible for a child to grow up in the same home with both parents. This is because of breakdown in relationships between parents. When a relationship between the parents of a child breaks up and they are no longer able to live together or where unmarried persons have a child, it is necessary to ensure that both parents influence and support the child." We submit that it is in the child's best interests to have care and support from both parents, regardless of past relationships or the identity of the person the child previously believed to be their father”. 40. The Respondent submits that the Appellant argues that the she shielded the minor from the Appellant for years thus creating a belief in the minor that the biological father was one, PMM who had been married to the Respondent. However, this does not absolve the Appellant of his legal responsibility to contribute to the child's maintenance. This was the position in PKM V ANM (2020) eKLR where the honourable court held that parties have a joint responsibility towards their child/children and none is superior or inferior to the other. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 6
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41. The Respondent further submits that the Appellant's claim that enforcing maintenance will confuse and damage the minor's perception of the world is mere speculation, and that what matters is the child's right to receive adequate support from both parents, a right that supersedes the Appellant's concerns about the minor's perception. 42. The Respondent submits that on the issue of backdating maintenance and upkeep; the Appellant avers that it is unfair that the lower court allowed receipts which were never produced nor stamped as per Section 19 of the Stamp Duty Act and backdated maintenance and upkeep from baby class when another person was actually providing for the minor. They argued that this is a technicality that should not overshadow the substantive issue of the child's right to parental support. This has been reiterated in Article 159(2)(d) of the Constitution of Kenya which provides that justice shall be administered without undue regard to procedural technicalities. It was submitted that on the issue of the minor being provided for by PMM, the court in ZAK & Another vs MA & Another [2013] eKLR, held that step parents could assume parental responsibility in certain circumstances based on Article 53 (2) of the Constitution. It is in the best interests of the minor that PMM was providing for the minor since the minor was in the custody of the Respondent but that does not however, relieve the Appellant from supporting the minor which is his responsibility as per Article 53(1)(e) of the constitution. It is submitted that the minor's need for maintenance should not be denied on such grounds. 43. The Respondent concluded that, from the foregoing, it is evident that the Appellant's appeal is without basis, malicious, and vexatious. It seeks to evade a fundamental responsibility of providing for the child's basic needs, contrary to the best interests of the child. The court was therefore urged to uphold the judgment of the court below. 44. The duty of the first appellate court is to re-evaluate the evidence in the lower court and to draw its own conclusions while bearing in mind that it did not have the opportunity to hear and see the witnesses testify. (See Selle and Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123; Peters v Sunday Post Ltd (1958) EA 424. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on a misapprehension of the evidence or on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did [see Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278). 45. The Appellant had in his defence denied the jurisdiction of the court in determining the suit since the Appellant resides and both work for gain in Nairobi the proper place of suing. However, I realize that the Appellant did not pursue the issue of jurisdiction and having allowed the court to determine the suit, I will refrain form considering that issue in this appeal. 46. The Appellant sought for the court’s indulgence to amend the date of delivery of the judgement on the Record of Appeal. This court appreciates that Judgment of the Principal Magistrate’s Court at Kangundo was delivered on 28th March, 2019 and thus allows the amendment sought by the Appellant in his submissions correcting the date of the judgement. 47. First, I will consider a critical issue that was raised before the trial court by the Appellant in regard as to whether the suit was incompetent for failure to bring out the fact that the suit was instituted on behalf of the minor. I have carefully gone through the provisions of Order 32 Rule 2(1) of the Civil Procedure Rules as mirrored in Legal Notice No. 77. Order 32 Rule 1 of the Civil Procedure Rules 2010, as read together with rule 15 of the same order is very clear on how minor and persons of unsound mind can institute and defend suits. I agree with the Appellant that the subject provisions are mandatory in nature. I have also read the Plaint as filed before the trial court and my observation is that the pleadings therein do not bring out the fundamental fact that it is a representative suit as the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 7
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minor had no capacity to sue. I am persuaded by decision in Nairobi High Court, Civil Appeal No. 77 of 2011: David Mboche V Grace Gathoni¸ where Hon. W. Musyoka, J. agreed with Hon. Ocharo PM who had dismissed a similar suit. 48. It is my considered view that, had the trial court paused for a minute to consider the foregoing issue as raised by the Appellant and to also peruse through the above decision, it would have agreed that in deed the Appellant’s pleadings did not bring out the fact of the suit was a representative one filed on behalf of the minor and would have decided otherwise by dismissed the suit upfront for being incompetent. At this point, I find that the suit in Kangundo Children’s Case No. 8 of 2016 was incompetent and I dismiss the same. 49. However, I will not stop here but consider other issues I consider to be of great concern on the appeal. 50. There is no dispute that the Appellant was the biological father of the then minor herein or that there was a relationship whose status is disputed, between the parties herein. On the former issue, the Appellant objected to the request for DNA testing to prove paternity by the Respondent terming it as unnecessary. This clearly showed that the Appellant did not dispute paternity otherwise he would not have objected to the DNA test request. 51. On the latter issue, the parties agreed to have been in a relation while working together at the Nairobi City County. What is disputed about the relationship is the cohabitation of the parties at any time. The Respondent stated that they cohabited at Ruai as husband and wife and as a result of the said cohabitation the Respondent became pregnant and gave birth to the subject minor herein on 30/12/2008. In her testimony in court, the Respondent stated that they lived together in Joska and the minor was born when they were together. These two versions of where the parties were allegedly cohabiting as alleged by the Respondent are contradictory in themselves. The Respondent seems not to be sure of where exactly they were allegedly cohabiting (if at all they did) when the minor was born. 52. According to the Appellant, the minor was born within the wedlock of the Respondent and her husband PMM (deceased) where they already had 4 daughters. The Respondent did not dispute this fact. If that were the case, then the Respondent can only have left her said marriage and went to cohabit with the Appellant. This was not demonstrated. I am convinced that the parties herein never cohabited at any time. 53. It appears that the trial court took the Respondent’s evidence as the gospel truth and concluded that both the Respondent and the Appellant had parental responsibility for the minor herein because they are the parents. Nor is there any analysis of the rival evidence concerning whether indeed the Appellant had taken up parental responsibility over the minor. 54. Whereas the trial magistrate was well alive to the rights of children and the respective duty of parents and restated the relevant law in her judgment, she did not attempt any analysis of the evidence to support her definite findings in the matter before her. 55. The Respondent’s pleaded case was that when the minor was born, the Appellant used to support him but he had now stopped after the Respondent and the Appellant stopped cohabiting. When the minor was 2 years old the Appellant left and stopped supporting the minor. She again pleaded and claimed for half the maintenance cost of the minor since birth to the time of filing the suit. This is a clear acknowledgement by the Respondent that the Appellant never took up parental responsibility nor supported the minor since he was born. 56. As already observed, the Respondent bore the minor herein out of wedlock when she was married to one PMM (deceased). A fact the Respondent did not deny at all. The Respondent, the minor, PMM and the Respondent’s four (4) daughters lived together as one happy family until 11th January, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 8
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2011, when unfortunately, PMM passed away. When the minor was born, PMM provided for and assumed parental responsibility for the minor. I am guided by the case cited by the Respondent in ZAK & Another vs MA & Another [2013] eKLR, where the court held that step parents could assume parental responsibility in certain circumstances based on Article 53 (2) of the Constitution. In the circumstances of this case, it my view that the best interests of the minor could only be taken care of and provided for by PMM as the step father. During that period, the said step father provided for the minor and therefore acquired parental responsibility over the minor, whom he assumed to be his biological child sired out of his marriage to the Respondent. This court is struggling to figure out how the Appellant would have managed to maintain the minor although his son within a marriage between the Respondent and her husband Paul without interfering with the marriage. 57. It is alarming that the Respondent never bothered to pursue the Appellant for the maintenance of the minor and waited until when PMM died that she instituted the suit in court. 58. Section 94(1) of the Children Act. 2001 (No. 8 of 2001) (Repealed) which was operational when this suit was filed provided that: “ The Court may order financial provision to be made by a parent for a child including a child of the other parent who has been accepted as a child of the family and in deciding to make such an order the court shall have regard to the circumstances of the case and without prejudice to the generality of the foregoing, shall be guided by the following considerations — (a) The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future; (b) the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future; (c) the financial needs of the child and the child’s current circumstances; (d) the income or earning capacity, if any, property and other financial resources of the child; (e) any physical or mental disabilities, illness or medical condition of the child; (f) the manner in which the child is being or was expected to be educated or trained; (g) the circumstances of any of the child’s siblings; (h) the customs, practices and religion of the parties and the child; (i) whether the respondent has assumed responsibility for the maintenance of the child and if so, the extent to which and the basis on which he has assumed that responsibility and the length of the period during which he has met that responsibility; CAP. 141 [Rev. 2012] Children [Issue 1] 44 (j) whether the respondent assumed responsibility for the maintenance of the child knowing the child was not his child, or knowing that he was not legally married to the mother of the child; (k) the liability of any other person to maintain the child; (l) the liability of that person to maintain other children.” 59. The Respondent also claimed half the costs she incurred on the maintenance of the minor since birth to date. She relied on a list of documents listing 40 documents which she produced as exhibits. The trial court notwithstanding the Respondent’s claim as pleaded proceeded to award the Respondent a refund of Kshs.116,227.00 being the maintenance cost of the minor since baby class to the time of filing this suit. This award was contrary to what the Respondent had pleaded and in addition the same was not strictly proved. I have perused the record and more particular the Respondent’s list of documents numbering 40 and I note none of the listeddocuments were attached to the said list. 60. In Osborn’s Concise Law Dictionary, special damages are defined as “damage of a kind which is not presumed by law, but must be expressly pleaded and proved”. That principle is well settled in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 9
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Kenyan law in the Court of Appeal’s decision in Coast Bus Service Ltd v Sisco Murunga Ndanyi & others, Civil appeal No. 192 of 1992 where the court stated thus:“ It is now trite law that special damages must first be pleaded and then strictly proved.” 61. I do not understand on what basis the trial court made the award for refund of Kshs.116,227.00 being the maintenance cost of the minor since baby class to the time of filing this suit. I find this award to be misplaced and I dismiss the same. 62. The key question on this appeal, and which ought to have been carefully considered by the trial court, is whether the Respondent had proved on a balance of probabilities, that the Appellant had since when the minor was born assumed parental responsibility as a father or parent responsible for providing for the minor child. The question whether the Appellant had acquired and assumed parental responsibility under Section 94(1) was a matter of fact. 63. Reviewing the evidence tendered in the lower court, I am of the view that there was neither credible proof of cohabitation between the parties, nor assumption of parental responsibility by the Appellant as a parent or otherwise for the maintenance of the child, as envisaged in Section 94(1)(i) and (j) of the Children Act 2001 (No. 8 of 2001) (Repealed). Since the Respondent’s case as pleaded could only be properly anchored primarily on these grounds, it ought to have failed on that basis. As earlier observed, the trial magistrate gave short shrift to the evidence by the Appellant and merely accepted the Respondent’s case without undertaking any analysis of the entire case or a consideration of all relevant matters enumerated under Section 94(1) of the Children Act. 2001 (No. 8 of 2001) (Repealed). 64. In view of all the foregoing, I find that this appeal is merited and will allow it. This court therefore sets aside the judgment of the lower court and substitutes therefor an order that the Respondent’s suit stands dismissed. 65. In light of the nature of the dispute, parties will bear their own costs on this appeal and in the lower court 66. Orders accordingly. It is so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 3RD JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD JUNE 2025 In the presence of : Mr. Mwongele........... for Appellant Absent............... for Respondent Milly Grace...........Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14364/eng@2025-06-03 10
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