Rwn v Nkk

iv. The Honourable Court be pleased to find that the Respondent raised a paternity dispute as a vexatious dispute with unclean hands and stay it pending determination of this appeal. v. The Honourable Court be pleased to find that the interlocutory children’s appeal is much more urgent than scheduled and reschedule it to an urgent date with respect to the paramountcy principle. vi. The Honourable Court be pleased to order that the Deputy Registrar facilitates the production of Lower Court file with all the matters documents filed on CTS for the Appellate Court’s perusal through the trial of the appeal. vii. The Honourable Court be pleased to order that the Appellant files a Record of Appeal without the interlocutory proceedings. viii. The Honourable Court be pleased to order that the trial Magistrate recuses herself from handling the main matter and the interlocutory applications whose review is prayed for in the appeal. ix. The Honourable Court be pleased to find that with bias and partiality expressed by the trial Magistrate this matter at the Appellate Court’s registry raises conflict of interest. x. The Honourable Court be pleased to transfer the main matter to Nyahururu Law Courts where the minors reside with the Defendant. xi. The Honourable Court be pleased to make any further orders in the best interest of the minor herein. xii. Costs of the application be provided for. 3. Looking at the prayers above, one immediately notices that the Appellant, perhaps being a lay person, has failed to appreciate the mandate and jurisdiction of an Appellate Court particularly where, as herein, the Court has been moved to only review a specific interlocutory order of the trial Court. I say so because although the Memorandum of Appeal is stated to be an Appeal against the orders made by the trial Court on 31/07/2025, some of the prayers made above include some that cannot be handled by an Appellate Court at this interlocutory stage and some, completely outside an Appellate Court’s jurisdiction, and some completely outside the specific DNA test order appealed against and issued on 31/07/2025. Some of the prayers also betray the Appellant’s failure to appreciate that, at this stage, the Court is not yet determining the main Appeal, but is simply hearing an Application for an order of stay pending Appeal. For instance, the prayers for recusal of the trial Magistrate, and for transfer of the case from Eldoret cannot be entertained by an Appellate Court before they are properly placed before the trial Court, canvassed before that Court, determined and then formally appealed against within the stipulated time. Only then can a higher Court assume jurisdiction on appeal. In this case, the only order made by the trial Court and which has been formally and properly appealed against is the order to conduct a DNA test issued on 31/07/2025, not any other. 4. Be that as it may, the Appellant, in her yet again unnecessarily very lengthy Supporting Affidavit, trying my best to summarize it as much as possible, deponed that the DNA test was ordered without a fair trial, and that her appeal herein will be rendered partially nugatory if the orders are executed. She deponed that despite the orders being in violation of her right to a fair trial, she has on three occasions sought for execution thereof so as to provide relief to the minor but 15 months have since lapsed and the Respondent, despite being the author thereof has found excuses to continue avoiding the same, and thus breaching the parental responsibility agreement dated 4/03/2023, and blocking progress of the trial. She urged that by seeking stay orders, she seeks to prove through this appeal that the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 2

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has graduated his gender-based violence and child abuse to legal abuse, under the protection of the trial Court, and contended that the protracted case has been delayed by the Respondent’s perjury, and goalpost shifting, and that the Respondent is a callous child abuser. According to her, grant of stay orders will not prejudice the Respondent but will provide a basis for safeguarding the child’s emotional and mental wellness. She also contended that this being a children’s matter, the vexatious paternity dispute is purported to frustrate progress of the main matter, and not in the best interest of the child. 5. The Appellant further deponed that the minors have suffered irreparably for long under watch of the trial Court as she approached the trial Court for mediation in the interim, but the Court ignored the request, that her Application before the trial Court was certified urgent, but no hearing date has been given to date, yet 6 months have lapsed and the trial Court has also not facilitated supply of certified proceedings paid for on 13/08/2025. She thus contended that she has no confidence in the current trial Magistrate as she has, by her partiality, bias, and disregard to the principles of justice, frustrated delivery of, and access of justice to the minor. According to the Appellant, the trial Magistrate has been giving confusing orders which the Respondent always finds a way to goalpost shift. She contended further that she used to be represented by an Advocate in the case who would smoothly facilitate flow of the case, but since she resorted to acting in person, the trial Court has become inconvenient, that despite being 260 km away from Eldoret, the trial Magistrate and Registry staff have been referring her to the Eldoret Court Registry to obtain access to Court documents for her appeal, and that on the day she availed herself at that Court, she was not allowed to access the file, only to later learn that most of her pleadings, including the hard copy of her DNA paternity report from the Kisumu Government Chemist, were missing from the Court file. She also urged that her 16-year-old child in respect to whom an Application for joinder was unlawfully rejected should be allowed to testify and that the cost of transporting the whole family to and catering for them in Eldoret will be unaffordable. 6. Again, looking at the contents of the Supporting Affidavit as set out above, one observes that it strays into matters completely outside the realm of the order appealed against it herein. 7. The Application is opposed by the Respondent who relies on his equally lengthy Replying Affidavit sworn on 18/11/2025, and filed through Messrs Njiru Kibaru & Co. Advocates. In the Affidavit, another verbose narrative, he deponed that the Application is an abuse of Court process as it seeks orders already overtaken by events, and thus only intended to delay the expeditious conclusion of the matter. He contended that the orders sought are not made in good faith, but intended to hide the truth and defeat justice, as the DNA test was ordered by the trial Magistrate pursuant to an oral consent recorded by the parties’ Advocates on 29/8/2024. He reiterated that on 19/09/2024, the Appellant, then acting in person, entered into a consent with the Respondent’s Advocate whereof the parties again agreed to conduct the test at the Government Chemist in Nairobi with the Respondent catering for transport and the cost of the test, that the parties availed themselves at the Government Chemist in Nairobi on 8/11/2024 when samples were taken but subsequently, communication was received from the Government Chemist that the samples taken had become unusable, and there thus was need for them to return for a retake at no cost. 8. The Respondent deponed that however, the Appellant then made numerous Applications and sent out letters raising a myriad of issues, among them, seeking orders for interim maintenance pending retake of the samples upon which the Court, on 20/10/2025 granted interim maintenance of Kshs 10,000/-. He stated further that the Court further ordered for the trial of this the to take off expeditiously, and the Appellant to cease her habit of filing numerous Applications. He urged further that subsequently, the parties agreed to retake the DNA test on 23/10/2025 at the Government Chemist at Nairobi, but on which date the Appellant did not appear nor bring the minor but, instead, sent a letter to the trial Court seeking recusal of the trial Magistrate from the case, and that for this https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 3

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reason, the matter was referred to the Chief Magistrate who then re-allocated it to another Magistrate. He thus contended that the Appellant has approached this Court with unclean hands by seeking orders that have since been overtaken by events, since compliance with the DNA test orders has already been demonstrated, and he has already paid the requisite fees and the process to conduct retake of the test is underway. According to him, the Appellant is forum shopping in an attempt to defeat justice while at the same time benefitting from the interim orders in place at the expense of the Respondent, that the Appellant has not met the threshold for grant of stay as she has not laid grounds to justify staying the DNA test orders, and that she has not demonstrated how she will suffer substantial loss or irreparable prejudice or that the appeal will be rendered nugatory. 9. He urged that the best interest of the minor demands expeditious finalization of the test to enable the Court move to other pertinent issues, and that the delay to conduct the test prejudices the minor. He deponed that the orders being sought are contradictory and legally unsustainable as the Appellant seeks to stay execution of orders yet simultaneously challenges the trial Magistrate who issued the orders yet that Magistrate has already recused herself. 10. The Application was then canvassed by way of written Submissions. The Appellant’s Submissions is dated 26/11/2025, while the Respondent’s is dated 3/12/2025. Due to the parties’ unexplained penchant for presenting verbose and unnecessarily very lengthy pleadings, I deliberately limited the pages within which their Submissions were to be restricted. To my amusement, I cannot help but notice that the Appellant still devised a clever way of “short-circuiting” the restriction by employing very small font and paragraphing in her Submissions. As they say, litigants will always find a way to stay a step ahead of the Court. 11. Be that as it may, a look at the Appellant’s Submissions reveal that the Appellant, has yet again, failed to appreciate that Submissions is not an opportunity to introduce new or additional evidence or arguments at a belated stage, but is simply meant to provide an opportunity to the parties to persuade the Court that application of the law to the facts already deponed in an Affidavit favours their case. I say so because the Appellant, in for instance, explaining her delay to file the Application for stay, which explanation she never gave in her lengthy Affidavit, now attempts to introduce factual explanations for the delay. Similarly, she has introduced a new angle of alluding that the Respondent may have bribed the Government Chemist, and also introduces a new demand for the Court to appoint a Guardian ad Litem, whatever that means in the circumstances of this case. She also now introduces a prayer that the monthly maintenance costs paid to her by the Respondent be increased to Kshs 70,000/- plus medical costs. She has also now attached an fresh “exhibit” (a letter) to her Submissions, another act that is not permitted at Submissions stage. 12. In any event, on the issue of recusal of the trial Magistrate, a perusal of the trial Court file reveals that the issue has long been overtaken by events since Hon. Watimmah (PM), who used to handle the case, already recused herself therefrom, and the same was re-allocated to Hon. P. Areri (SPM). 13. On the Appellant’s accusation of the trial Court for delaying to supply proceedings, the Appellant seems to also fail to appreciate that it is because of her filing of this very Appeal that the process stalled. The Appellant does not seem to appreciate that once an Appeal is filed, the trial Court file has to be forwarded to the Appellate Court for the Judge hearing the Appeal to have a complete record before him. 14. The rest of the matters set out in both set of Submissions, both by the Appellant and by the Respondent, are basically repetitions and reiterations of matters already deponed in their respective Affidavits. I do not therefore deem it necessary to again recount the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 4

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Determination 15. As already observed at the introductory stage of this Ruling, despite the lengthy pleadings filed by the parties, the only issue for determination properly arising from the orders appealed against is “whether, pending hearing and determination of this Appeal, an order staying execution of the trial Court’s directions issued on 31/07/2025 for a DNA test to be conducted should be issued”. 16. On the issue of stay pending Appeal, I must reiterate that in determining matters involving the welfare of children, including an Application for stay of execution such as the one as herein, the “best interest” of the child is what is paramount. This is expressly provided in Article 53(2) of the Constitution, and also in Section 8(1)(a) of the Children Act as follows: Article 53(2) of the Constitution Section 8(1)(a) of the Children Act “A child’s best interests are of paramount importance in every matter concerning the child.” “In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies— a. the best interests of the child shall be the primary consideration;” 17. On the other hand, the principles applicable in handling Applications for stay of execution in children’s matters were well set out by Murithi J in the case of Bhutt v. Bhutt, Mombasa HCCC No. 8 of 2014 (O.S.) to be as follows: “ In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the Civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with Article 53 (2) of the Constitution.” 18. Generally, the principles guiding grant of stay of execution pending Appeal are well settled. In this respect, Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows: “ No order for stay of execution shall be made under sub rule (1) unless— 19. (a) the Court is satisfied that substantial loss may result to the Appellant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Appellant.” From the foregoing, it is clear that an Applicant seeking stay of execution pending appeal must satisfy 3 conditions, namely, (a) he/she will suffer substantial loss unless the order is granted, (b) the Application has been made without unreasonable delay, and (c) willingness to deposit security for the due performance of any orders so stayed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 5

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20. It is therefore the position that the objective of stay of execution is to prevent “substantial loss” from befalling an Appellant, and thus to prevent the appeal from being rendered nugatory. Stay of execution pending appeal is therefore a discretionary power which, needless to state, must not be exercised on whims, but judiciously, on defined principles and on the basis of facts. 21. On the first condition, namely, whether the Appeal was filed timeously, the Ruling appealed against was delivered on 31/07/2025, the Appeal was filed on 20/08/2025, and the instant Application was filed on 6/11/2025. The Application was therefore filed more than 3 months after delivery of the Ruling. This delay, which is clearly inordinate, has not even been explained in the Appellant’s Affidavit, and as aforesaid, an explanation cannot, in law, be introduced at the Submissions stage, as the Appellant attempted to do. This finding alone is sufficient to dismiss the Application. I will however, for completeness of the record, still proceed to interrogate the merits of the Application, as I hereby do. 22. The second condition is whether there shall be any “substantial loss” to be suffered by the child should the order not be granted. As to what encompasses “substantial loss”, F. Gikonyo J, in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, stated as follows: “ ….. The Appellant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Appellant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 23. It is important to always recall that in children’s matters, the interests of the child supersede those of the parents. The “substantial loss”, which prevails, over and above that of the parent, is therefore that of the child. The Court must thus look beyond the possible “loss” to be suffered by the parent and dwell on the “loss” that may be suffered by the child. In regard thereto, in the case of LDT v PAO [2021] eKLR, R. Ngetich J, stated as follows: “ 18. While considering stay of execution in respect to children matters, beside the above, the Court has to consider the best interest of the child. The Appellant is expected to demonstrate that the minors will suffer if a stay is not granted. I however note that the Appellant averred that he will suffer great prejudice as he will be condemned to pay school fees twice if an order of stay is not granted. ........................ 20. 24. The best interest of a child is superior to rights and wishes of parents; they should incorporate the welfare of the child in its widest sense. .....” In this case, it is evident that the initial DNA test results presented by the Appellant to the trial Court was disputed by the Respondent who claimed not to have been involved in the exercise. As a result, the trial Court directed the parties to present undergo a fresh DNA test exercise at the Government Chemist at Kisumu to resolve the matter once and for all. The trial Court also directed the Respondent to cater for the costs of the test and also transport. However, this was not done, and when the parties appeared before the trial Court on 19/09/2024, the Appellant sought that the tests be, instead, conducted at the Government Chemist in Nairobi, which demand, the Court acceded to, and again directed the Respondent to cater for the costs. When the parties appeared before the trial Court on 7/11/2024, it transpired that although samples for conducting the test had been taken as directed, the Government Chemist had communicated that the same had somehow become unusable, and had requested the parties to return for taking of fresh samples. Upon hearing the parties, the trial Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 6

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directed them to return to the Government Chemist at Nairobi for taking of fresh samples. When the parties appeared before the trial Court on 5/12/2024, the Appellant informed the Court that although she had presented herself at the Government Chemist in Nairobi as directed, the Respondent did not appear. In response, the Respondent informed the Court that he had not received any communication from the Government Chemist inviting him to re-avail himself for the fresh samples-taking exercise and he also demanded that before he avails himself for the fresh exercise, the Government Chemist be compelled to first issue a detailed report explaining what really happened to the initial samples. When the parties appeared before the trial Court on 13/2/2025, the Court informed the parties that it had now received a formal letter from the Government Chemist requesting the parties to return for taking of fresh samples, and therefore directed the parties to agree on where to conduct the test. It is at this point that the Appellant began challenging the DNA test order and then filed the Application dated 19/02/2025 seeking review and setting aside of the order. 25. The said Application dated 19/02/2025 was then determined by way of the Ruling the subject hereof, delivered on 31/07/2025, whereof the trial Court understandably lamented that the parties had kept on filing numerous interim Applications thus frustrating the trial of the case. The Court then retained the DNA test order, and directed the parties to avail themselves at the Government Chemist in Nairobi for purposes of retaking the test. The trial Court also issued an interim order directing the Respondent to pay to the Appellant a monthly sum of Kshs 10,000/- as maintenance costs towards upkeep of the minor while interim custody remained with the Appellant (the mother). Further, pending conclusion of the DNA test, the parties were both barred from filing any further Applications which, in the Court’s view, only served to delay determination of the case. It is the retention of the DNA test order that forms the subject of this Appeal, and also the instant Application in which the Appellant seeks stay pending Appeal. 26. Since the main dispute is still under active litigation before the trial Court, and what the Appellant is challenging is an interlocutory order, to avoid the risk of pre-judging the case, and also considering that the Appeal is also yet to be heard, I will try as much as possible, to restrain myself from delving into, or making statements that may be interpreted to be straying into the merits or demerits of the case. All I will do is therefore to identify the position that best cushions the minor from the adverse effects of the battle between his parents, pending hearing and determination of the Appeal. 27. As it stands, the minor is currently under the physical custody of the Appellant (mother). From my perusal of the proceedings before the trial Court, it evident that the issue of paternity has been, and still is, a massive bone of contention between the parties. The parties have not been able to move the suit forward because of the issue. I am however, at this stage, persuaded by the Respondent’s contention that the Appellant appears to be seemingly shifting goal posts on the DNA test issue because she had all along agreed to the test being conducted, and even participated in the botched exercise conducted at the Government Chemist in Nairobi. Before that she had even presented her own DNA test results which was however rejected by the Respondent who claimed not to have been involved in procuring it. The Appellant’s belated turn-around to challenge the order directing the parties to participate in the fresh DNA test exercise does, indeed, seem to be an afterthought motivated by ulterior motives. I also note that the Appellant has not even bothered to give any reasons for her challenging the conduct of the DNA test and for her sudden turn-around. 28. In light of this finding, I am not even persuaded that the Appellant possesses an arguable Appeal that has chances of success. At this stage, I am persuaded that, indeed, the best interest of the minor, which is the paramount consideration in determining cases concerning children, is not to stay the order to conduct the DNA test which is meant to conclusively settle the question of paternity. My finding https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 7

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is therefore that the Appellant has completely failed to demonstrate that the minor will suffer any “substantial loss” or that the Appeal shall in any way be “rendered nugatory” if the DNA test proceeds. 29. For the foregoing reasons, I am not satisfied that the Appellant has demonstrated the possibility of the minor suffering any “substantial loss” should this Appeal succeed. 30. I also take judicial notice of the fact that the parties, particularly the Appellant, have already, either by design or by unintended consequence, by their numerous but unnecessary interlocutory Applications, frustrated the conclusion of the case and in the process have caused the case to stall. I will not therefore be used to perpetuate a needless battle of egos and self-interest. Similarly, I will not allow any forum shopping. The parties must be reminded that the interest that the Court protects in cases concerning children is that of the child, not that of the parents. Having therefore chosen to go to Court, they should let the trial Court to serve them by carrying out its mandate. Final Orders 31. Under the above circumstances, the Appellant’s Notice of Motion dated 5/11/2025 fails, and the same is accordingly dismissed. Costs shall be in the Cause. DELIVERED, DATED AND SIGNED AT ELDORET THIS 27TH DAY OF FEBRUARY 2026 WANANDA JOHN R. ANURO JUDGE Delivered in the presence of: Ms. RN - the Appellant/Applicant N/A for the Respondent Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2483/eng@2026-02-27 8

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