John Chuchu Muchai v Linda Rema Kimani

2. Alongside the Plaint, the Respondent filed an application on even date seeking legal custody, care and control of the minor, monthly upkeep of Kshs.50,000/= and costs of the application. In response, the Appellant filed a Replying Affidavit wherein he denied paternity of the minor and averred that he should not be held liable for the maintenance of the said minor. 3. When the matter came up for mention on 26 th November, 2024, the Appellant’s counsel informed the court that the Appellant disputes paternity of the minor and the Respondent’s counsel sought for leave to file a further affidavit to what the Appellant’s counsel sought for leave to file corresponding affidavit. Upon considering each counsel’s position on the requests by the parties, the court found that it would not be in the interest of time to go direct into the determination of the suit and directed them to file and exchange their respective further affidavits, alongside their submissions for the court’s determination on the issue of paternity as the same had been disputed. 4. The Trial court then delivered a Ruling on 28th January, 2025, which made the following orders were issued:a) The Applicant, the Respondent and the child shall undergo a DNA test at the Government Laboratory within 30 days of the HCCA. NO.E020 OF 2025 RULING - Page 2 of 13

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date hereof for purposes of establishing the subject child’s paternity. b) The Applicant and the Respondent shall bear equal share of the costs of the DNA test except that if after the test, it turns out that the Respondent is the child’s father, the Respondent shall refund the Applicant’s share of the costs. Similarly, if the test turns out in favour of the Respondent, the Applicant shall refund the Respondent’s costs. c) The results of the DNA test shall be filed in court as soon as they are released and in any event within seven days of such release. 5. Being aggrieved with these orders, the Appellant filed the present appeal through Memorandum of Appeal dated 28th February, 2025 citing ten (10) grounds as follows: a) THAT the Learned Magistrate of the lower court erred in law and in fact in finding that the Respondent and the Appellant had a relationship without any proven evidence to this effect. b) THAT the Learned Magistrate erred in law and in fact in making the above determination having refused to delve into the issue of whether or not the Respondent in relying on electronic evidence had complied HCCA. NO.E020 OF 2025 with the mandatory RULING - Page 3 of 13

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provisions of Section 106 (B) of Evidence Act Cap 80, Laws of Kenya. c) THAT the Learned Magistrate erred in law and in fact in failing to appreciate that the Respondent had solely relied upon the aforesaid electronic evidence to prove the existence of an alleged relationship between her and the Appellant. d) THAT the Learned Magistrate erred in law in failing to make a determination that the aforesaid electronic evidence had been placed before the honourable court by the Respondent without complying within the mandatory provisions of Section 106b of the Evidence Act. e) THAT the Learned Magistrate erred in law and in fact by ordering the parties to undergo a paternity test when the issue of paternity was not subject matter of the application before the honourable court. f) THAT the Learned Magistrate erred in law and in fact in failing to appreciate that the issue of paternity was raised by the Respondent as an afterthought. g) THAT the Learned Magistrate erred in law and in fact in failing to appreciate that the issue of DNA testing raises HCCA. NO.E020 OF 2025 RULING - Page 4 of 13

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serious constitutional issues affecting the constitutional rights of the Respondent, the Appellant and the minor and therefore calling for the court to balance all the competing constitutional rights and these must be dealt with separately and on its own and not in a casual and cavalier manner as complained of herein. h) THAT the Learned Magistrate erred in law in ordering parties to undergo a paternity test in a vacuum. i) THAT the Learned Magistrate erred in law and in fact to failing to appreciate that the Respondent had failed to make out a prima facie case to warrant an order of paternity. j) THAT the Learned Magistrate erred in law and in fact in ordering the parties to undergo paternity testing as a matter of course. 6. The Appellant thus seeks to have the appeal allowed and the following orders granted:a) THAT the Ruling and order of the Hon court order dated 28 th January, 2025 be set aside in entirety together with any consequential orders flowing therefrom. b) THAT the Respondent’s application dated 11th November, 2024 HCCA. NO.E020 OF 2025 RULING - Page 5 of 13

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be heard and detained based on the material before the honourable court as at the 28th January,2025. c) THAT the costs of this appeal be awarded to the Appellant. d) That the Honourable court do be pleased to make any order (s) as will be necessary for the ends of justice to be met. 7. On 13th November, 2025, the court directed the appeal to be canvassed by way of written submissions with the Appellant being ordered to file the same by close of business of 28th November, 2025 and the Respondent by 4 th December, 2025. As at the time of writing this Ruling only the Respondent had filed her submissions dated 3rd January, 2026. 8. In the Respondent’s submissions, three issues have been raised for determination and they are:a) Whether an Order for paternity test goes against the Constitutional Rights of the Appellant. b) Whether the Court ought to consider the provisions of Section 106(b) of the Evident Act over the best interest of the child. c) Whether the Respondent is entitled to costs. Determination 9. This being a first appeal, the court is required to reanalyse and re-evaluate HCCA. NO.E020 OF 2025 RULING - Page 6 of 13

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the evidence and decision of the trial court. In the case of Abok James Odera t/a A.J Odera & Associates –vs- John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the same stated with regard to the duty of the first appellate court, the court stated that; “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way” 10.Pursuant to this duty, I have read through the original Record of Proceedings of the trial court and Respondent’s submission in consideration of the grounds set out in the Memorandum of Appeal and finds that the main ground of appeal is whether the trial court erred in ordering paternity test to be done. 11.It is trite that the Appellate court should be slow to interfere with the discretion of the court. This was succinctly explained in the case of Mbogo & Another –vs- Shah, [1968] EA, P.15; “An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in HCCA. NO.E020 OF 2025 RULING - Page 7 of 13

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exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.” 12.Indeed, the case before the court is a Children’s Case where the Respondent is seeking orders on custody and maintenance of a minor against the Appellant on the ground that the said minor is an issue of their relationship. The Appellant opposed this prayer on the ground of disputed paternity of the minor. 13.In consideration of the application seeking orders on custody, care and maintenance of a minor where paternity has been disputed, in the instant case, at Paragraph 3 of the impugned ruling delivered on 28th January, 2025, by the trial court states:“It becomes imperative therefore, that where parentage is contested as in the case, it has to be established who the parents of the child are before them or any of them is saddled with the burden that parental responsibility entails. This determination is even more necessary because of the burden of parental responsibility does not come light. It is almost a HCCA. NO.E020 OF 2025 RULING - Page 8 of 13

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lifetime burden and that is why a court of law must be absolutely certain that the person at whose door it holds the buck is none other than the parent of the child in issue. It is trite that the right of the child to parental care takes precedence and the paramount consideration is the best interests of the child.” 14.At paragraph 5 of the said ruling, the trial court observed that:“There is a likelihood that the Respondent could be the father of the child, having had a relationship with the Applicant. The minor is entitled to know if the Respondent is the father and what needs proof to the satisfaction of the curt is whether there is eminent need to establish paternity so that the claim on behalf of the child can be pursued. It is my view that sufficient cause has been shown why the Respondent should undergo a DNA test so as to determine the paternity of the child”. 15.It is trite that where paternity is disputed, the only way to address the same is to order for DNA test . In the case of JCK & Another (Minors Suing thro' their next friend Mother MNB) –vs- GKC (Civil Appeal E014 of 2022) [2023] KEHC 25619 (KLR )(20 November 2023) HCCA. NO.E020 OF 2025 RULING - Page 9 of 13

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(Judgment) Neutral citation: [2023] KEHC 25619 (KLR), the Court had this to say on disputed paternity:“Since paternity was disputed, this Court would not deal with other orders sought in this Appeal. The best way of resolving the issues is to conduct a DNA test. It is only after establishing paternity conclusively that the trial court can then frame the issues for determination, analyze and dispose of the matter.” 16.In the case of Kakamega High Court Misc. Application No. 105 of 2004, MW versus KC where Justice G.B.M Kariuki (as he then was) set out and explained the conditions to be considered by a court on ordering for a DNA test; a) The Applicant must show that there is sufficient cause for seeking the order and there is a likelihood that the respondent could be the father of the child; b) The Respondent’s refusal to submit to the DNA test violates the child’s right to know his father; c) The Respondent’s refusal to take a DNA test is an unreasonable because it deprives the child of the possible HCCA. NO.E020 OF 2025 RULING - Page 10 of 13

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enjoyment of the rights and benefits of enshrined in sections 4 to 19 of Part II of the Children Act; d) The court has jurisdiction to compel the Respondent to undertake a DNA test. 17.It is also trite that other than paternity test, there is no other way of determining whether a man is the father of a child or not as it is necessary for the court to establish which orders should issue in the matter. The court in the case of FKW (suing as the Mother and next Friend of GDW (Minor) v. DMM [2015] eKLR, Ngaah J. held as follows:“What all these decisions point to is that where it is in the best interests of the child that a paternity test should be undertaken; where there is no other means of determining the father of a child other than by means of a paternity test and therefore where such a test is necessary in the circumstances and, where, in any event, the applicant has made out a prima facie case for such a test, then a court of law will ordinarily make an order for such a test. Looking at the applicant’s case from this perspective, there is no doubt that it is in the best interests of the subject child that the DNA test should be taken. It is the child’s constitutional right and he is better of HCCA. NO.E020 OF 2025 RULING - Page 11 of 13

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growing up with the knowledge of who his parents are. As noted earlier there is no other way of determining who the father of the subject child is apart from conducting a DNA test and therefore this test is necessary in the circumstances of this case.” [Emphasis added] 18.Having examined, reanalysed and reevaluated the application dated 11 th November, 2024, the response thereof vide a Replying Affidavit sworn by the Appellant alongside the ruling delivered on 28th January, 2025, I find that the trial court neither erred in fact and law in its ruling delivered on 28 th January, 2025 where it ordered for a DNA test to be done before it could proceed to determine the entire suit. Even then, the Appellant ought not to have faulted the trial court’s findings and order for a paternity test when he was the one who invited this through his counsel when he disputed paternity of the minor in opposing the Respondent’s claim the issue of paternity is crucial in determining the suit filed vide a Plaint dated 11 th November, 2024 in line with the provision of Section 32 of the Children’s Act. 19.For those reasons, the Court finds that the appeal herein is not merited and proceeds to order that:- HCCA. NO.E020 OF 2025 RULING - Page 12 of 13

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a) The appeal dated 28th January, 2025 is hereby dismissed with costs to the Respondent. b) The original Record of Proceedings in Kiambu Magistrate’s Court Children’s Case No.E054 of 2024 shall be returned to the Registry for the same to be placed before the trial court to proceed with hearing and determination. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT … KIAMBU…….. THIS 12TH DAY OF FEBRUARY , 2026. D. O. CHEPKWONY JUDGE In the presence of Court Assistant - Martin Mr. Muturi holding brief for Mr. Adudo counsel for the Appellant Mr. Rono counsel for the Respondent HCCA. NO.E020 OF 2025 RULING - Page 13 of 13

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