Muli v Maundu

3. c. The Honourable Magistrates' Court, in arriving at its judgement dated the 15th of September, 2025, failed to appreciate the precision with which a certified DNA result would present to assuage the impasse o the paternity of the minor subject d. The judgement of the Honourable Court failed to take into consideration the fraudulent manner in which the birth certificate was obtained, and went ahead to make its decision, solely on the premise of the Appellant's name appearing thereon. e. There were numerous instances when the Respondent herein was required to appear before a medical facility to present the minor for the said DNA testing and she, of her own volition, absented both herself and the minor herein, thus frustrating the process of DNA testing. f. The Appellant/ Applicant is ready and willing to abide by any conditions and directions as may be issued by this Honourable Court, upon allowing the present application. g. It is, therefore, in the interest of justice for this Application to be certified urgent The application is opposed by the Respondent vide her replying affidavit sworn on 21st January 2026. The Respondent avers that:a. The motion is riddled with gross misrepresentation of the events that transpired in the lower court. b. The court’s have consistently held that a child’s best interests are of paramount importance and this principle is underpinned by both the Constitution and statutory obligations. c. The Appellant was grossly affected by the ex-parte order issued by this court when the trial court had pronounced itself through a hearing in which the Appellant was a participant. d. With regard to the supporting affidavit by the Applicant, his first complaint is that the court had failed to take into consideration a DNA test to determine paternity which is a false premise. e. The Respondent instructed her advocate to file Mavoko Children’s Case No. E030 OF 2023 on 2nd June 2023 contemporaneously with a motion under certificate of urgency following which parties appeared in court on 17th July 2023 when an order by consent was recorded as follows: i. That the parties shall avail themselves to any institution of choice for purposes of sample taking for DNA process. ii. That the cost of the DNA process be borne by the Applicant. f. The order stipulated that the Appellant would undergo DNA testing but did not specify timelines within which the exercise was to be carried out. g. On numerous occasions thereafter, the Respondent’s advocate reached out to the Appellant’s advocate requesting the Appellant to avail himself for DNA testing and for which there was no compliance. h. Following the Appellant’s refusal to submit himself for DNA testing, the Respondent again instructed her Advocate to file an application seeking to have the Appellant compelled to take DNA testing. An order on the same was issued on 6th May 2024. i. Thereafter, the Respondent’s Advocate wrote numerous letters to the Appellant’s Advocate requesting for the Appellant to confirm availability for DNA testing but there was no https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10680/eng@2026-07-14 2

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communication on a date when he would avail himself. The order stipulated compliance within 45 days and the Appellant neither complied, requested for an extension to ensure compliance against the order. j. Owing to the blatant non-compliance of the order issued, the minor was not being adequately maintained and the Respondent instructed her Advocate to file an application seeking an early hearing date and interim payment of school fees and interim maintenance which he did vide an application dated 11th July 2024. k. The lower court took into account the Respondent’s request and the Appellant’s sentiments and ordered monthly remittance of Kshs.10,000/= pending hearing of the matter. The Appellant dutifully complied with the order and remitted the amount to her Advocates. l. The matter was scheduled for hearing on 1st April 2025 but could not be heard and was adjourned to 17th April 2025 at the Appellant’s instance. The Respondent eventually testified on 24th June 2025 and the Appellant testified on 5th August 2025. Parties were then directed to file their respective submissions to enable them take a judgement date. m. Prior to judgement being delivered in the matter, the Appellant filed an application dated 25th August 2025 seeking various orders including but not limited to striking out a Birth Certificate that was an exhibit in the trial court which application was opposed by the Respondent. In the said application, the Appellant did not complain about the issue of DNA. n. The trial court after considering rival submissions, dismissed the said application and reserved the matter for judgement. o. The judgement delivered in the matter is the subject of this appeal. p. The Appellant is misleading the court by stating that he was bereaved at the time when the DNA was to be conducted. As aforementioned, an initial order was issued on 17th July 2023 to which the Appellant refused to submit for extraction of the relevant DNA sample and consequence whereof the Respondent file an application seeking to have the Appellant compelled to submit himself. q. The window for DNA testing commenced on 17th July 2023 and closed on 20th June 2024 when the deadline for the second order lapsed which is a period of 307 days. During that period, the Respondent’s advocate implored the Appellant to submit himself for DNA extraction but he declined. r. With regard to the Birth Certificate which the Appellant seeks to challenge, the Respondent states that : s. i. The case was filed on 2nd June 2023 and the Birth Certificate was an exhibit from the commencement of the case. ii. During the pre-trial process and even during the hearing the Appellant did not question the Birth Certificate which became an exhibit/ iii. By a strange application filed before judgement, the Appellant commence a challenge to the Birth Certificate and which application was rightly dismissed. By obtaining an ex-parte order, the schooling of the minor has been affected as the Respondent has not been able to give the minor the lifestyle that he deserves. The Appellant should not be enjoying order staying the maintenance of a child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10680/eng@2026-07-14 3

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t. 4. The Respondent prays that the stay order be promptly discharged and for the Appeal to proceed in the usual manner. Justice tilts towards compelling the Appellant to comply and hearing to be expedited. Upon receipt of the Respondent’s Replying Affidavit, the Applicant filed a Further Affidavit dated 24th February 2026 contenting that:a. as the Respondent does in paragraph three of her Replying Affidavit, that the Supporting Affidavit sworn by the Applicant and dated the 2nd of October 2025 is riddled with gross misrepresentation of facts and events that transpired in the lower court, cannot be further from the truth, as the said pleadings as typed in the lower court are duly annexed in the said pleadings for this Honourable Court to truly decipher and make its informed appellate decision. b. the averments by the Respondent to the effect that the Appeal is impeding the achievement of the constitutionally provided for best interest of the minor is misplaced, being that the alluded to best interest has to, as a matter of fact and law, correctly inferred, before the same can be claimed. That Justice R. N. Nyakundi in his decision in JCK v EC (Children's Appeal Case E038 of 2024) [2025] КЕНС 11964 (KLR) (11 August 2025) (Judgment) held that parental responsibility, as a right owed to a minor, has to be split in equal measure, the financial status of one party notwithstanding. In all her averments, the Respondent has consistently relied on the payments of Kenya shillings ten thousand, Kshs.10, 000 that the Applicant used to make through his then Advocates on record, oblivious of the fact that the Applicant was doing so in strict compliance with the directions of the honourable trial court, and not as a way of admitting the contested issue of paternity of the subject minor. c. It is untrue and morally wrong for the Respondent to mislead, misguide and divert the attention of this Honourable Court in respect of DNA testing, being that the Applicant’s then Advocates on record personally wrote to her and served her on WhatsApp seeking that she presents the subject minor to a designated location for DNA testing, to which she neither responded nor complied. Annexure marked JMM1 is a copy of the said letter seeking the presentation of the subject minor herein for DNA testing. To pontificate and painstakingly try to divert this Honourable Court's direction to paint the Applicant as a blatantly unwilling and unconscionable party to the orders of the Honourable Trial Court is to curtail the achieving of the ends of justice for the Respondent's minor, and the same should be accordingly rebuked and discouraged as it goes against the spirit of Article 53 of the Constitution of Kenya. d. The Replying Affidavit by the Respondent herein acutely veers off the substratum of the Applicant’s constant communication, through his then Advocates on record, wherein the Applicant sought, through a letter dated the 9th of May 2023, to be allowed to consolidate funds for the DNA tests, however the Respondent sought to have the Applicant summoned by the Chief at Athi River, to discuss issues of maintenance, oblivious of the then ongoing case and the prior letter seeking DNA test. To allege that the Applicant faked having been bereaved to avoid attending to the DNA tests is as far an extent as the Respondent herein is willing to go to drag the Applicant and his family in the mud, to selfish extents only known to her. e. By virtue of the Respondent herein, without the Applicant’s consent, having included the Applicant’s name in the minor's birth certificate that, in itself, does not confer paternity, as was held by Justice Riechi in MMK & Another v Registrar of Births & Deaths & 2 others (Miscellaneous Application E027 of 2024) [2025] КЕНС 1904 (KLR) (Family) (6 February 2025) (Judgment). The alluded to birth certificate, is subject to ongoing investigations, as the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10680/eng@2026-07-14 4

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Applicant is beyond himself with the believe that it was unscrupulously procured and utilized for the sole purpose of having him be forced to bear paternal responsibility for a minor whom he has no biological linkage to. 5. f. Further that, Articles 4 of the African Charter on the Rights and Welfare of the Child and Article 3 of the United Nations Convention on the Rights of the Child, confer among the minor, the right to, among other things, have a name agreed upon by both parents, however the Respondent herein has, out of her own volition neglected to consult the father of her child herein in the naming of the said minor, and sought to include the Applicant’s name, without his knowledge, that the incessant efforts by the Respondent herein to have the Applicant involved in her life and that of the said minor have become so malicious that she has caused havoc and inexplicable chaos to the Applicant’s family, his wife and children, disguising that the Applicant threatened to kill her, vide a complaint filed at the Office of the Director of Public Prosecutions, Machakos. So hurtful and insensitive have the selfish advances of the Respondent herein been, that the Applicant’s wife had to approach a competent court of law to seek restraining orders against her visiting the Applicant’s home and work places to cause unwarranted chaos and drama, using an innocent minor as a shield to advance her case. Annexed to the Further Affidavit and marked JMM4 is a copy of directions and the ruling of the Honourable Court to the effect of restraining the Respondent from accessing the Applicant’s home and work environment. g. The Respondent ought to, as a matter of right, reunite the minor herein with its real and biological father and avoid cutting corners in the name of trying to clutch onto the Applicant for unmerited financial support of the minor, pegged on a non-existent paternal relationship to the subject minor. h. The Respondent herein deserves to be put on the straight and narrow for emotionally denying and depriving the subject minor of its rights at such an early stage in its life, and be made to dearly pay for such flagrant and unwarranted actions towards an innocent minor. i. The Applicant has been and still is ready and willing to submit himself to a fair and judicious legal process of this Honourable Court, and to have this matter expeditiously adjudicated in the best interest of justice, as harmonized with the minor’s herein best interests, and for the Respondent to be stopped from the unwarranted cunning manoeuvres she is employing to deprive the minor of is basic needs, in the guise of claiming to bestow upon the Applicant its paternity. j. The Applicant urges this court to extend its injunctive orders dated the 4th of October 2025, pending the hearing and determination of this Appeal. The application was directed to be canvassed by way of written submissions and both parties complied by filing and exchanging submissions. Those submissions replicate the summary above and I wish not to duplicate the same here. Analysis and Determination 6. I have carefully considered the instant application, the Replying Affidavit, Further Affidavit, rival submissions by parties’ advocates and the authorities cited. The bone of contention both in the application and appeal herein is paternity of the Applicant to the subject minor. I am thus invited to determine whether to stay execution of the lower court judgement and allow the prayer for DNA testing sought in the application pending determination of the appeal or dismiss the application and set down the appeal for hearing to determine the same issue of DNA testing in the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10680/eng@2026-07-14 5

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7. Undoubtedly, the predominant issue in this case is paternity. The application and the appeal both seek for the same prayer which is DNA testing. Allowing the said prayer in the instant application will automatically spend the appeal since there will be no other pending issue to be determined in the appeal. 8. Without conclusive paternity which is predominant issue in this matter, the Respondent cannot lay any claim whether parental or legal obligation owed by the Applicant/Appellant to the subject minor herein. 9. The question of paternity has to be established first and once that is done, the outcome thereof will settle the other issue of whether or not to retain the Applicant’s name in the child’s current Birth Certificate. This Court notes that on 17th July 2023, parties consented to submit themselves for DNA testing but this did not happen and the trial court issued compelling orders on 6th May 2024 for the DNA testing to determine paternity of the Applicant to the subject minor herein but it appears the same was never conducted and the parties seem to be shifting blame on each other for non-compliance with the testing. 10. The DNA test to be conducted herein will establish whether the Applicant share common paternity with the minor and would resolve the issue of paternity once and for all. 11. With regard to the stay of execution of the Children’s Court judgment and orders of 15th day of September, 2025, the law on stay of execution is outlined under Order 42, Rule 6 of the Civil Procedure Rules in the following terms: (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 12. The exparte orders herein were granted based on the prima facie facts presented at the time. It has now been brought to the attention of the court that by granting an ex-parte order staying the trial court’s judgement, the schooling of the minor has been affected as the Respondent has not been able to give the minor the lifestyle that he deserves. Therefore, the Appellant should not be enjoying the order staying the maintenance of a child with prejudices the best interest of the child as provided for under Article 53(2) of the Constitution of Kenya .2010. 13. Accordingly, in order that this matter is not delayed further and that the same is brought to a close, this court makes the following orders:a. Parties shall avail themselves and the minor herein to any institution of their choice for purposes of sample taking for DNA paternity testing process within forty-five (45) days of this order. b. If the Parties are not able to mutually agree on an institution as ordered in (a) above, then this court directs that they avail themselves and the minor at Kenyatta National Hospital for the same within the stipulated period above. c. That the cost of the DNA process be borne by the Applicant/Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10680/eng@2026-07-14 6

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14. d. In the meantime, and pending further orders of this court, the Applicant/ Appellant shall continue to make the current monthly payments for the minor. e. There shall be no orders as to the costs of the application. f. A mention date to be fixed after 45 days for further orders of the court following the outcome of the DNA testing. It is so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 14TH JULY 2026. NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10680/eng@2026-07-14 7

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