Jmk v Mwn

2. In his defence, the appellant denied being the biological father of the minors and gave notice that he would be demanding for DNA tests. He also averred that he was married to another woman and he could not have cohabited with the respondent and that his salary of Kshs 31,000.00 could not maintain both his family and the minors in the suit. 3. During the hearing, the court ordered that DNA test be carried out but the same was not done until the appellant was committed to remand. On 17-01-2022, the court after seeing the DNA test results which returned positive on the appellant’s paternity, ordered the appellant to pay the respondent Kshs 15,000.00 towards maintenance pending judgment to which appellant retorted that he won’t pay prompting the court to add that, in default of payment the appellant was to be committed to jail for fourteen days under Section 101(7) of the Children’s Act. The appellant was released from jail on 18-01-2022 after the respondent confirmed having received the amount. 4. The proceedings show that after judgment in which the court ordered that the appellant be paying an all-inclusive maintenance of Kshs 10,000.00, he failed to comply until he was arrested and committed to jail. Going through the proceedings, one would not fail to notice that the appellant would only obey court orders if the court issued sanctions of jail against him. That is however beside the point in this appeal safe that the appellant accused the trial court of having been biased which he has repeated in this appeal. 5. The main outcome in the final judgment after hearing both parties was that the respondent was granted custody with the appellant getting reasonable access and ordered to remit Kshs 10,000.00 all-inclusive payable monthly. The appellant was aggrieved by the decision of the trial court following which he has raised the following grounds; 1. That the Honourable Magistrate erred in law and practice by proceeding with the matter which was not properly before the court as evidenced by the fact that the matter was manually filed while e-filing was mandatory and the plaint was never signed. 2. That the Honourable Magistrate erred in law and practice by skipping the hearing part of the matter as evidenced by inability of the respondent to prove that she was married to him. 3. That the Honourable Magistrate erred in law and practice by relying on forged documents hence arriving at a wrong judgment as evidenced by birth certificates which bore the appellant’s name. 4. That the Honourable Magistrate erred in law and practice by passing a judgment while fully aware that the appellant was in prison and could not file his submissions. 5. That the Honourable Magistrate erred in law and practice by relying on questionable DNA results with conspicuous discrepancies, a matter he raised in court. 6. That the Honourable Magistrate erred in law and practice by relying on oral evidence to indicate that indeed there was marriage backed by forged birth certificates which indicated there was indeed communication between the court and the respondent outside the court sittings. 7. That the Honourable Magistrate erred in law and practice by portraying open bias against his personality as evidenced by undocumented incarcerations. 8. That the Honourable Magistrate erred in law and practice by passing a vague judgment by denying the appellant a chance to co-parent by failing to grant him visitation rights leading to the respondent to decide what was reasonable access and what was not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4844/eng@2026-04-17 2

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9. That the Honourable Magistrate erred in law and practice by denying the appellant any other review or grant him any visitation after the judgment. 6. The memorandum of appeal prayed that the judgement be set aside and the respondent be compelled to file a fresh suit if she so wishes. The appeal was canvassed by way of written submissions. I have read the submissions of the appellant dated 11th June 2025 and those of the respondent which were not dated. I will write this judgment by considering each ground of appeal and where necessary combine those which are covering the same issue. 7. The first ground of appeal accuses the Honourable Magistrate of proceeding with the matter which was not properly on record. According to the appellant, the matter had been filed manually while online filing was mandatory. This in my view, is a lame argument because what matters is whether the cause was duly registered in the court system. The introduction and adoption of online filing did not in any way bar, nullify or vitiate those that had been filed manually. It was developed and introduced for purposes of enhancing administration and dispensation of justice and not to invalidate what existed before. I do not think I need to say much on this straw. 8. The appellant has faulted the trial court for what he called skipping of the hearing part. What I understand from this is that, the appellant is saying that the matter was either not heard at all or was not properly heard. The record shows that the respondent and the appellant testified on 17-01-2022 and each was cross-examined by the other. It is this hearing that resulted to the court’s order for DNA test after the appellant denied paternity during his testimony. The appellant has not helped in his submissions as he has said nothing about this ground. 9. In his third ground of appeal, the appellant has stated that the Honourable trial court relied on forged documents specifically the children’s birth certificates. In the sixth ground of appeal, the appellant claims that the Honourable court relied on the same birth certificates to impute that there was marriage between him and the respondent which in his view was an indication that there was communication between the respondent and the Magistrate outside the proceedings. I will handle these grounds together. 10. I have gone through the judgement of the trial court and have not seen any part where it suggests that the court’s judgment was in anyway infiuenced by the birth certificates. In fact, the proceedings do not show that the birth certificates were produced as evidence in the matter. In any event, even if there was reliance on the birth certificates, it is notable that the DNA test results were clear that the appellant was the father of the minors. The appellant did not produce any evidence of forgery of the birth certificates. It was his onus to prove the forgery as he was the one who expected the court to rely on that aspect which he did not discharge. 11. It should be noted that children’s matters have nothing to do with marriage between the parents. Whether married or not, the parents of the children have responsibilities to maintain them. This is the purport of Section 32(1) of the Children’s Act which provides that; ‘Subject to the provisions of this Act, the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.’ 12. In LC v NC [2022] KEHC 12065 (KLR), it was held that; ‘However, the position in law is that parental responsibility is neither dependent on the marital relationship of the parents nor on the whims of a parent but on consideration of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4844/eng@2026-04-17 3

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the best interests of the child. This overarching principle is founded on Article 53 (2) of the Constitution.’ 13. There is no evidence that the respondent communicated with the court outside the formal proceedings. These are speculations which have no place in litigation. Going through the judgment of the court, I don’t see any discussion or holding on marriage between the parties. It never came up during the proceedings and it is not anywhere in the judgement. 14. The appellant has also accused the trial court in grounds four and seven of being biased and passing judgment while he was in prison. The proceedings placed before me show that the appellant was remanded in custody for disobeying court orders twice before the judgement was delivered. The first one was on 27-09-2022 when the court was informed that the appellant had failed to pay for DNA test. Immediately after the order for committal was issued, the appellant paid the amount required for the test and was released the same day. 15. The second time was on 17-01-2022 when he told the court to its face that he won’t pay a sum of Kshs 15,000.00 he had been ordered to pay as maintenance. He was released on 18-01-2022 after the respondent confirmed that she had received the money and the matter was reserved for mention on 31-01-2022 on which date the court fixed judgment for 16-02-2022. There is no indication that the parties attended the mention. Come 16-02-2022, the court delivered its judgement in presence of the appellant and the respondent. 16. Subsequent to the judgment the appellant was detained in the course of execution of the court’s decree and it is unfortunate that the appellant chose to throw words and accusations in the appeal without verifiable facts. In any case, delivery of judgement in absence of any of the parties does not amount to bias or error and it is not relevant unless one is making an application to extend time to file an appeal. 17. The basis for accusing the court of bias is that it incarcerated him during the trial. As I have mentioned elsewhere in this judgement, the short-lived incarcerations of the appellant were in execution or enforcement of compliance with of court orders which is a lawful cause under Section 121(6) of the Children’s Act (which was the same as Section 101(7) of the repealed Children’s Act). A court cannot be accused of bias because of enforcing the law or its orders simply because a party does not like it. I have not lost sight of the fact that the appellant disobeyed court orders three times during the hearing and at some point, accused the court of bias leading to Hon. Wanyaga disqualifying himself from further execution proceedings. 18. The proceedings bring out the appellant out as a party who was bitter with finding himself against the respondent before a court of law. No matter the status of the relationship between him and the respondent, the appellant should understand that this is a children’s matter and the children must be catered and provided for. Venting his emotions on the court does not help his case and he should appreciate that the court was an arbiter whose mandate was to protect the interest and welfare of the children. 19. It is argued by the appellant that the court relied on questionable DNA results. He avers that the results had conspicuous discrepancies and that he raised the matter in court. On 4-01-2022, copies of the DNA results report were given to the parties and the matter proceeded for hearing. In his recorded evidence in chief, the appellant stated that he disputed the report but did not give reasons for the same. He went further to state that he was willing to take his parental responsibilities, specifically education and medical exepences and that he had never been given any school fee structure. 20. In my view, where a party has reasons to dispute DNA results, they should make an application for a second or further test by an institution or expert of their choice and where they choose or go silent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4844/eng@2026-04-17 4

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on that, the court has no alternative but to accept the results as shown in the report unless there are glaring and obvious features in the report that would make it lose its authenticity. The appellant has not pointed out what discrepancies he claims to have been in the report and his reasons for doubting the authenticity of the results. 21. Ironically, in ground 8 of the memorandum of appeal, the appellant faults the court for failing to give him a chance to co-parent by denying him visitation rights. He argues that the judgment gave the respondent the discretion to decide what would be reasonable visitation. I say ironically because on the other hand, the appellant has denied paternity and resisted parental responsibility. That aside, I note that the trial court in its judgment granted the appellant reasonable access and in a subsequent ruling delivered on 3-04-2023 during execution proceedings, it directed that the appellant shall have access on every alternate Saturday from 8 am to 5 pm which in my view clarified what the appellant is complaining about. 22. The trial court did not lock out any of the parties from making application for variation of its orders. In children matters, parties are always at liberty to apply for variation or review of court orders as circumstances keep changing. In that case, this was a matter of review or variation if the appellant felt that the terms of access were unfavourable or insufficient. He has not tried that before the lower court and this court will not entertain it in appeal. 23. The last ground blames the court for denying him a chance to review or grant him any visitation after judgement. As observed above, nothing stops the appellant from making an application for variation of the orders if he has good reasons for that. This is an argument which has no basis and it is dismissed. 24. The conclusion of the above is that this appeal lacks merits and the same is hereby dismissed with no orders as to costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF APRIL 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. Judgment delivered in presence of the appellant in person and in absence of the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4844/eng@2026-04-17 5

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