Skn v Cwn (suing On Behalf of and As Mother and Next Friend of Fcn A Minor)

B. Background 4. By a Plaint dated 17th March 2025, together with a Notice of Motion of even date, the Respondent moved the trial court seeking, among other reliefs, legal and actual custody of the minor F.C.N (stated to have been born on 30th November 2021) and an order compelling the Appellant, as the alleged father, to provide for the minor’s maintenance, including school fees and school-related expenses, monthly maintenance of Kshs. 30,000/=, and entertainment of Kshs. 5,000/= per month. The application was certified urgent and directed to be served for inter partes hearing. 5. The Appellant opposed the application by a Replying Affidavit sworn on 11th April 2025. In it, he denied paternity, deposing that although he and the Respondent had been in a relationship, the union produced no child, and that the birth certificate of the minor does not name him as the father. He accordingly contended that he could not lawfully be compelled to maintain a child who was not his. 6. On 14th April 2025, the trial court — acting upon the paternity dispute so raised, and upon the Appellant’s own request for a DNA test — directed that the minor be availed for DNA sample collection at the Kenyatta National Hospital, that the Appellant also present himself for the exercise on a date to be agreed, and that the cost be borne by the Respondent, refundable in the event the test returned positive. The matter was fixed for mention on 29th July 2025. 7. The record shows that the DNA test did not take place as directed. By letters exchanged in July 2025, the Respondent’s advocates pressed for a convenient date, while the Appellant’s advocates, by their letter of 11th July 2025, indicated that the Appellant was engaged in an active military operation and would not be available for sample collection until December 2025, and that they would seek an adjournment on 29th July 2025. 8. On 29th July 2025 the parties were recorded absent and the matter was placed for mention on 30th July 2025. On 30th July 2025, the trial court stayed the application for DNA and ordered the Appellant to pay Kshs. 10,000/= per month in the interim, fixing the main suit for hearing. 9. The Appellant thereafter filed an Application for Review dated 12th August 2025, contending that the orders of 30th July 2025 had been made in his absence and without notice — the matter having been listed for 29th July 2025 — and that it was unjust to require him to pay maintenance while paternity remained disputed and untested. Upon hearing that application, the trial court delivered the impugned Ruling of 15th September 2025, by which it retained the interim sum of Kshs. 10,000/= per month “in the best interest of the child” and directed that the DNA test be conducted, when the Appellant became available, before the hearing of the main suit. 10. It is that Ruling that has given rise to the present appeal. It is also on record that, following a Notice to Show Cause taken out by the Respondent, the Appellant obtained orders of stay from this Court, and the substantive matter in the court below stands adjourned for hearing, the paternity of the minor remaining undetermined to date. C. The Appeal and the Parties’ Submissions 11. The Memorandum of Appeal raises two grounds, namely: i. That the learned trial magistrate erred in law and in fact by issuing interim maintenance orders before determination of the paternity of the minor; and ii. That the learned trial magistrate failed to consider the Appellant’s Replying Affidavit on record disputing paternity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12417/eng@2026-07-28 2

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12. The Appellant’s written submissions urge that paternity is the legal foundation of any obligation to maintain a child, and that where paternity is disputed it must be conclusively determined before maintenance can issue. Counsel submitted that the paramountcy of the child’s best interests under Article 53(2) of the Constitution must be applied in a manner that fixes responsibility on the correct person, and that imposing maintenance before paternity is established risks burdening the wrong party. The Appellant relied on a number of authorities cited in his submissions, including ZW v MGW and JCK & another v GKC, for the proposition that a disputed paternity ought to be resolved by DNA before other orders are made. 13. The Respondent’s written submissions oppose the appeal. Counsel submitted that the trial court did order a DNA test, on 14th April 2025, and that it was the Appellant who declined to avail himself for the exercise, electing to postpone it to December 2025 without placing any supporting material before the court. It was submitted that the Appellant, having frustrated the very determination he now says ought to have preceded maintenance, comes to this Court with unclean hands, and that the interim order was properly made to safeguard the best interests of the minor under Article 53(2) of the Constitution and section 4 of the Children Act. The Respondent urged that the appeal be dismissed and that clear timelines be given for the DNA exercise. D. Issues for Determination 14. Having considered the Memorandum of Appeal, the record and the rival submissions, the issues that fall for determination are: i. Whether this Court should interfere with the trial court’s exercise of discretion in issuing an interim order of maintenance pending the determination of paternity; ii. Whether the trial court failed to consider the Appellant’s Replying Affidavit; and iii. Who should bear the costs of the appeal. E. Analysis and Determination The nature of this appeal and the applicable standard 15. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the record and to arrive at its own conclusions, bearing in mind that it has neither seen nor heard the witnesses: Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424. 16. That duty must, however, be exercised with an important qualification peculiar to this case. The order appealed against is not a final judgment on the merits. It is an interlocutory order, made in the exercise of the trial court’s discretion, granting interim maintenance pending the hearing of the suit. This Court will therefore not interfere merely because it might have exercised the discretion differently. As held in Mbogo & Another v Shah [1968] EA 93, an appellate court will not interfere with the exercise of discretion by a lower court unless it is satisfied that the court misdirected itself in some matter and as a result arrived at a wrong decision, or that it acted on matters it should not have acted upon, or failed to take into account matters it should have considered, or that it is manifest from the case as a whole that the decision was clearly wrong and occasioned an injustice. The question before this Court is therefore not whether Kshs. 10,000/= was the perfect figure, but whether the trial court, in making the interim order, fell into an error of the kind that warrants appellate interference. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12417/eng@2026-07-28 3

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Issue (i): Interim maintenance pending determination of paternity 17. The Appellant’s first ground rests on a premise that, with respect, the record does not support. The premise is that the trial court imposed maintenance while ignoring the question of paternity altogether. The record shows the opposite. Far from disregarding paternity, the trial court squarely addressed it: on 14th April 2025 it ordered a DNA test — the very relief the Appellant himself had sought — and put in place practical arrangements for it, including who was to bear the cost and its refund should the result prove positive. 18. What then intervened was not any refusal by the court to determine paternity, but the Appellant’s own inability, or unwillingness, to avail himself for the test. By his advocates’ letter of 11th July 2025 he postponed the exercise to December 2025, and no material was placed before the trial court to substantiate that postponement. It was against that backdrop — a paternity test ordered but stalled by the Appellant — that the trial court, on 30th July 2025 and again on 15th September 2025, made and then retained the modest interim provision of Kshs. 10,000/= per month for the child’s upkeep in the meantime. 19. In matters concerning children, the best interests of the child are of paramount importance in every matter concerning the child: Article 53(2) of the Constitution and section 4 of the Children Act. A child’s need for food, shelter and schooling does not suspend itself while adults litigate. As this Court observed in BWW v JMN (Civil Appeal 99 of 2012 & 215 of 2013 (Consolidated)) [2022] KEHC 13439 (KLR), a child’s welfare cannot wait, and interim maintenance may properly be kept in place pending the determination of the disputed questions in the suit. 20. The principle is reinforced by AWM v LNG (Civil Appeal E085 of 2023) [2024] KEHC 12128 (KLR), where this Court, dealing with a disputed paternity in a maintenance suit, held that the best way of resolving such a dispute is to conduct a DNA test, and further that the rights of a minor to receive maintenance should not be made contingent on the actions of one party. Those observations apply with even greater force here, where the party whose conduct has stalled the paternity test is the very party who resists the interim maintenance ordered in the interim. 21. Two features of the interim order confirm that the trial court struck a proper balance. First, the order is interim and provisional only; it decides nothing finally and abides the outcome of the DNA test and the main suit. Secondly, the sum fixed — Kshs. 10,000/= per month — is modest, being a fraction of the Kshs. 30,000/= per month claimed, and is by its nature recoverable should paternity ultimately be excluded. The Appellant is not without a remedy: the surest and swiftest way for him to bring the maintenance obligation to an end, if his position is correct, is to submit to the DNA test he himself requested. He cannot, having delayed that test, be heard to complain of the very interim measure his delay made necessary. 22. The authorities relied upon by the Appellant do not assist him on these facts. The proposition that a disputed paternity should ordinarily be resolved before a maintenance obligation is fixed is unexceptionable as a general statement, and it is precisely why the trial court ordered a DNA test in the first place. But those authorities are concerned with the final fixing of parental responsibility, not with an interim measure to protect a child while a court-ordered test remains outstanding through the putative father’s own doing. They do not stand for the proposition that a child must go unsupported for as long as a putative father chooses to defer the test. To read them in that way would be to invert the paramountcy principle and to reward delay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12417/eng@2026-07-28 4

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23. For these reasons, I am not satisfied that the trial court misdirected itself or arrived at a decision that was clearly wrong. On the contrary, its order was a measured and lawful exercise of discretion directed at the paramount interest of the minor. The first ground of appeal fails. Issue (ii): Whether the Replying Afidavit was considered 24. The second ground — that the trial court failed to consider the Appellant’s Replying Affidavit — cannot stand alongside the record. The Replying Affidavit’s central complaint was that paternity was disputed. The trial court did not overlook that complaint; it responded to it directly by ordering a DNA test on 14th April 2025. A court that orders a paternity test precisely because paternity has been put in issue cannot sensibly be said to have ignored the affidavit that put it in issue. 25. Nor does the Appellant’s reliance on the absence of his name from the minor’s birth certificate advance the second ground. The absence of a putative father’s name on a birth certificate is not conclusive proof that he is not the father; it establishes only that paternity is unproven on that document — which is the very reason a DNA test was directed. The point raised in the affidavit was thus not disregarded; it was addressed in the only way that could conclusively resolve it. The second ground of appeal also fails. Issue (iii): Costs 26. On costs, while costs ordinarily follow the event, this is a family matter concerning the welfare of a young child, and the substantive dispute between the parties — including the question of paternity — remains to be heard and determined. In the circumstances, and to avoid escalating the conflict between the parents to the child’s detriment, the just order is that each party bears its own costs of this appeal. F. Disposition 27. 28. In the result, and for the reasons set out above, this Court makes the following orders: (a) The appeal is hereby dismissed. (b) The Ruling of the trial court delivered on 15th September 2025, retaining the interim maintenance of Kshs. 10,000/= per month made on 30th July 2025, is upheld. The interim order shall continue to operate pending the outcome of the DNA test and the hearing and determination of the main suit. (c) Given the lapse of time, the parties (that is, the minor F.C.N, the Respondent and the Appellant) shall avail themselves for the DNA test at the Government Chemist within thirty (30) days of the date of this judgment, the best interests of the minor being observed throughout, and the results shall be furnished to the trial court. (d) In the event the DNA test excludes the Appellant’s paternity, the trial court shall make such consequential orders as may be just, including as to the disposal of the sums paid or held under the interim order. (e) The file is remitted to the trial court, which is directed to hear and determine the main suit expeditiously in light of the DNA results and the evidence of the parties. (f) Each party shall bear its own costs of this appeal. Orders accordingly. DATED, SIGNED AND DELIVERED AT THIKA THIS 28TH DAY OF JULY, 2026. HON. ALEX ITHUKU https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12417/eng@2026-07-28 5

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JUDGE In the presence of: Ms. Ndichu for the respondent Ms. Chepkorir for Ms. Ngetich for the appellant Court assistant – Anastacia HON. ALEX ITHUKU JUDGE Ms. Ndichu I pray that security deposited Kshs. 50,000/= before the High Court be returned to the respondent. It should be treated as maintenance. HON. ALEX ITHUKU JUDGE Ms. Chepkorir I have instructions that the security was deposited as security for stay of execution. Court I note the application. The sum of Kshs. 50,000/- will be released to the respondent. It will be treated as maintenance and accounted for the months not paid. HON. ALEX ITHUKU JUDGE 28/07/2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12417/eng@2026-07-28 6

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