Bwg (suing Through His Mother and Next Friend Lkn) v Ckg & 1 other

2. Contemporarily, the appellant filed an application dated 11th July 2022 in which they sought the following orders: a. That this honourable court be pleased to certify this application as urgent and dispense with service in the first instance. b. That this honourable court be pleased to grant as temporary injunction, restraining the defendants, their agents, servants or anyone at their behest from interring the body of MGG until such a time that a DNA shall be conducted to establish the paternity of the 1st plaintiff pending the hearing and determination of this application. c. That this honourable court be pleased to grant a temporary injunction, restraining the defendants, their agents, servants or anyone at their behest from interring the body of MGG pending the hearing and determination of this suit. d. That the costs of this application be provided for. 3. The respondents filed defence and a replying affidavit. 4. Subsequently, the appellants filed another application dated 12th August 2022, which sought the following prayers: - 5. 6. 7. a. That this honourable court be pleased to grant an order to exhume the body of MGG interred at Kaguma Home Imenti Central Meru County for purposes of getting a specimen to conduct a DNA test to establish the biological parentage of the 1st plaintiff herein pending the hearing and determination of this suit. b. That this honourable court be pleased to grant an order directed at the MOH Meru Level Five Hospital to supervise the conduct of exhumation and preservation of the body of the deceased (MGG) for purposes procurement of the required specimen. c. That this honourable court be pleased to grant an order directed at the OCS Kaguma Police Station to provide security during exhumation of the body of the deceased MGG. d. That this honourable court be pleased to grant any further orders in the interest of justice. e. That the costs of this application be provided for. The respondents filed a reply to the said application and also filed their own application dated 26th August 2022 in which they sought the following orders: a. The court be pleased to strike out the plaint dated 11/7/2022 b. The costs of the suit as well as this application be provided for. The lower court considered the application dated 12th August 2022 alongside that dated 26th August 2022 and in its ruling delivered on 2nd November 2022 it made the following findings: a. The application dated 12th August 2022 be and is hereby dismissed. b. The application dated 26th August 2022 be and is hereby allowed. c. Parties to bear their own costs. Aggrieved by the said decision, the appellants filed a Memorandum of Appeal dated 23rd November 2022 in which they raised the following grounds: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1562/eng@2026-02-13 2

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a. That the learned Chief Magistrate erred in law and facts by denying the appellants the right to be heard contrary to the principles of the law against condemning a party before being heard. b. That the learned Chief Magistrate erred in facts and the law by dismissing/striking the plaintiffs/Appellant’s suit without any legal basis or plausible grounds. c. That the learned Chief Magistrate erred in facts and the law in failing to adhere and consider the principles of natural justice and the rules of procedure. d. That the learned Chief magistrate erred by striking/dismissing the plaintiffs/Appellant’s suit denied the appellants a fair administrative action and condemned the 1st Appellant’s the natural rights of seeking to know his father and heritage. e. That the learned Chief Magistrate erred in facts and the law by failing to bear the main suit thereby condemned the appellants unheard against the law. f. That the learned Chief Magistrate erred in law and facts by failing to uphold the applicable law and aid the 1st appellant whose interest should be paramount as a child in need of protection, care and a guaranteed future. g. That the learned Chief Magistrate erred in facts and the law by failing to allow the appellants a chance in any event to amend the claim if there was need to do so to conform to the new facts after respondents ignored the orders issued earlier who should have been found in contempt of the court. h. That the learned chief Magistrate’s ruling and orders were against the Rules of Procedure and the Law. 8. The appellants thus sought orders that; the appeal be allowed, the orders of the trial court and ruling of 2nd November 2022 be set aside, the appellant’s suit be reinstated and that the said suit to proceed before a different magistrate. 9. At this juncture, it is important to note that although the directions on the appeal were issued on 8th March 2024, the appeal never proceeded for hearing due to several reasons that are recorded. It only proceeded on 2nd July 2025, when the parties appeared before me and stated that they had already filed their submissions. 10. This position explains why despite the nature of the case, the appeal never took off for quite a while. 11. The appeal was argued through written submissions. Appellants’ submissions 12. It is the appellants’ submissions that the ruling of the trial Magistrate meant that the suit was dismissed without giving a chance for them to be heard, contrary to the principles of natural justice and the provisions under Article 47 of the Constitution. 13. It was further submitted that the striking out of the suit was contrary to Article 53 of the Constitution which provides that a child’s interests are of paramount importance in every matter concerning that child. 14. It was further submitted that rather than striking out the suit, the trial court ought to have allowed the amendment of the plaint to conform to the new facts which included the description of the matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1562/eng@2026-02-13 3

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Respondent’s Submissions 15. It was submitted that the subject of the suit having been overtaken by events, there was no basis for the application dated 12th August 2022. That there was also no basis for the suit as its substance had been compromised after the interment of the deceased. 16. It was further submitted that while the child’s interests are paramount, the suit before the lower court was not a matter pertaining to a child as such. That a dispute as to paternity of a child can only be addressed in a proper forum. 17. It was further submitted that what was before the trial court was not an application for amendment of the plaint and that the trial court was right to ask the parties to go back to the drawing board. Analysis and determination 18. This court’s duty is as was stated in Selle v Associated Motor Boat Co. Ltd (1968) EA 123. The Court of Appeal for East Africa stated follows: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.’’ 19. In the ruling which is the subject of this appeal, the learned magistrate found that the appellants had not disclosed the particulars of the property for which they sought injunctive orders pending the filing of the succession proceedings. The court then asked the appellants to go back and render their pleadings. 20. It is not in dispute that the initial application dated 12th July 2022 was withdrawn when it became clear that the deceased had already been interred. The appellants then filed the second application dated 12th August 2022. The respondents then filed their own application dated 26th August 2022. 21. Looking at the prayers sought in the plaint, I am of the view that whilst the first prayer had been overtaken by events when the deceased was buried, the 2nd prayer was still alive and was capable of being argued. 22. The fact that the full details of the matrimonial home were not disclosed was not good reason to strike out the suit. The court had a wide discretion to allow an amendment of the pleadings. Resulting to striking out the suit was very drastic and premature and it had not heard the appellants’ reason for seeking the prayer for injunction. 23. It is trite law that striking out a suit ought to be taken in the clearest of circumstances and if a suit is capable of being sustained by an amendment, then the court ought to grant a chance for that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1562/eng@2026-02-13 4

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amendment. This point was reiterated by the Court of Appeal in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] eKLR, where it was held as follows; “ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”. 24. Article 159(2) (c) of the Constitution offers a clear guide to courts in determining matter on substantive grounds rather than resulting to technicalities. 25. For the foregoing reasons, I am inclined to agree with the appellants, who include a child who was seeking a chance to be recognized as a child of the deceased, ought to have been given a chance to amend the pleadings. The striking out of the suit was as drastic as orders come and that is not a situation that can be left to stand. 26. In the upshot, I allow the appeal and set aside the order of the lower court allowing the application dated 26th August 2022. The suit is hereby reinstated. 27. In the upshot, the following orders do issue; a. The suit in the lower court is hereby reinstated. b. The lower court record is to be returned to the said court to be heard by a magistrate other than Hon. John M. Njoroge. c. The trial court may be moved for any orders it finds fit to advance the cause of justice. d. Each party will bear their own costs of this appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF FEBRUARY, 2026. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1562/eng@2026-02-13 5

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