BWW v JMN [2022] KEHC 13439 (KLR)

BWW v JMN (Civil Appeal 99 of 2012 & 215 of 2013 (Consolidated)) [2022] KEHC 13439 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13439 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 99 of 2012 & 215 of 2013 (Consolidated)

TM Matheka, J

October 6, 2022

Between

BWW

Appellant

and

JMN

Respondent

(Being an appeal from the Ruling and Orders of the Hon. G.M Mutiso, Senior Resident Magistrate, delivered on the 25th day of April, 2012 in Nakuru Children’s Court Case No. 42 OF 2011, and the Judgment of Hon J Nthuku Senior Resident Magistrate in Nakuru Children’s Court Case No. 42 of 2011 In the Matter of Maintenance of a Minor dated 22nd October 2013)

Judgment

1. At the center of these two appeals is the paternity and maintenance of MN, a child born June 11, 2009 to BWW the plaintiff/appellant. According to her the father of the child is one Dr JMN the defendant /respondent.

2. By a Plaint dated March 21, 2011, BWW filed Nakuru Children's Court Case no 42 of 2011 suing Dr JMN for orders inter alia that he do maintain and make monthly financial provisions for the minor being medical expenses, food, shelter and clothing as the court would determine; Together with the plaint she filed the application seeking interim maintenance of Ksh 50,000 pending the hearing and determination of the suit.

3. The two appeals are consolidated for the reason that one was against an interlocutory application, and the other against the final judgment of the court. The tortuous journey this matter has taken speaks to the fact that when the adults in a children’s matter are fighting each other, they sometimes lose complete sight of the reason they came to court in the first place and get embroiled in their own personal differences. This matter was filed when the child subject of the dispute was 3 years old. That child is 13 years old today. The whole thing beats every logic in the Constitutional principle of the best interests of the child.

4. It is matters like this that will make children lose complete trust in our justice system, and in us as adults who are expected to do what is right by them.

5. BWW averred in her plaint that she had cohabited with the Respondent as a husband and wife in the year 2009/2010 which cohabitation led to the birth of one MN the subject minor herein.

6. She accused the Respondent of neglecting the subject minor immediately after she was born by failing to provide her with proper care and maintenance, shelter, clothing and other necessities, and medical expenses.

7. The Respondent vide an amended statement of defence dated July 1, 2011 any alleged affair with the Appellant, or cohabiting with her and siring the minor herein with her. He contended that the issue of maintenance could not arise as he was neither the father of the subject nor the husband of the Appellant.

8. He further stated that before the hearing of the suit he would apply for a scientific paternity test of the subject through a DNA test and would seek indemnity from one SWK whom he believed was the biological father of the subject in the event the court found him liable to the Appellant.

9. On March 29, 2011, at the request of the Respondent, it was agreed that the parties would proceed for the DNA test with the minor so as to resolve the paternity issue. Subsequently, parties were granted a mention date of April 5, 2011 for purposes of recording a consent on how the DNA test would be carried out.

10. On the April 5, 2011, both parties appeared in court and the following consent was recorded:'By Consent, the plaintiff, the defendant and the minor MN to avail themselves before the Chief Government Chemist Nairobi on April 19, 2011 under escort of a Police Officer from Nakuru Police Station for preparation of obtaining samples, which samples should be obtained under the supervision of the Chief Government Chemist and the Defendant will pay costs of the DNA test'

11. The matter was fixed for mention on the May 10, 2011 to confirm whether the DNA report was ready. That mention did not happen and instead on 12th May a date was fixed in the registry for hearing of the matter on May 17, 2011. This sis when the court was told that the DNA report was ready and one no xxxxx PC Beth Kamande presented the DNA results reference no M61/2011 dated May 4, 2011. The report indicated that there was a 99. 99% chance that the Respondent was the biological father of MN.

12. Counsel for the appellant, stated in response 'We apply to be supplied with copies of the DNA results and a date for hearing of the application dated March 21, 2011 now that the issue of paternity has been resolved'. To this request the record shows that there was no objection from counsel for the respondent as the record shows: 'no objection' response from her.

13. The application dated March 21, 2011 was the one seeking interim orders for the maintenance of the subject pending the hearing and determination of the suit.

14. There were intervening circumstances before that application could be heard as the respondent filed another application dated May 20, 2011 seeking orders for an alternative DNA test claiming that the DNA test that was conducted at the government Chemist was compromised. His evidence in support of this serious allegation was contained in his Supporting Affidavit where he attached alleged text messages from persons, he alleged were aware of the results long before the same had been presented to court. It was his claim that these persons were close associates of the appellant and worked in the government health sector and must have had an influence in the results. All this was denied by the appellant.

15. The other intervening factor was that the respondent obtained leave to amend his defence. Pursuant to that leave he filed the application dated July 11, 2011 seeking leave to take out 3rd Party proceedings against one SWK, who he alleged was the biological father of MN, and against whom he intended to seek indemnity against should the court find him liable in this suit. However, that application was dismissed with costs on July 25, 2011 for lack of merit and being filed in the wrong forum.

16. The application dated March 21, 2011 was eventually heard together with the application dated May 20, 2011 seeking alternative DNA test. This latter application was withdrawn during arguments. Counsel for the appellant notified the court that a similar application by the respondent had been dismissed earlier on.

17. With respect to the application dated March 21, 2021, the trial court, vide its Ruling dated November 14, 2011, held that the Appellant did not justify the prayer for a monthly maintenance sum of Kshs 50,000/= and ordered the respondent to pay a sum of Kshs 5000/= monthly with effect from December 1, 2011 towards the food requirements of MN while the Appellant would cater for the subject’s other needs until further orders of the court.

18. The Respondent filed two more applications, one dated October 3, 2011 seeking orders for an alternative DNA test for both parties and the minor and a stay of the delivery of the Ruling that was scheduled for October 17, 2011. On grounds for the request for the alternative DNA were that prior to DNA results being submitted to court, he had received text messages with similar DNA results that was submitted before the trial court from the third parties who are Appellant’s friends and employees of Ministry of Health whom he believed had great influence and interfered with the DNA results.

19. The application dated November 29, 2011 sought stay of execution of the Ruling delivered on November 14, 2011 pending the hearing and determination of the above application dated October 3, 2011.

20. All these matters proceeded before Hon Tanui SRM. The respondent was not complying with the interim court orders and that delayed the matter for a while.

21. On February 20, 2012 the two applications were fixed for hearing on the March 19, 2012. The matter did not proceed and was fixed for hearing on the March 26, 2012 at 8:00am.

22. There are no proceedings for the March 26, 2012. The next date in the proceedings is the April 2, 2012 before Hon GM Mutiso SRM. He fixed the matter for mention for compliance with the interim orders by the respondent. On one of the mentions on April 18, 2012, Counsel for respondent, in the absence of counsel for the appellant asked the court to proceed to hear the two applications ex parte as the same were unopposed. The learned magistrate proceeded to hear the two applications then and gave a date for Ruling and proceeded to allow the two applications deeming them unopposed.

23. The gist of the court’s Ruling dated April 25, 2012 was that the first DNA results were inauthentic and proceeded to order an alternative DNA test and in addition stay of the interim orders of maintenance orders issued on November 14, 2011 until the alternative DNA results were received in court.

24. It is the above decision that triggered the Appeal Number 99 of 2012. Vide a Ruling dated November 2, 2012 Ouko J (as he then was) allowed a stay of the orders in the Ruling dated April 25, 2012 pending the hearing and determination of the appeal.

25. In the meantime, the matter proceeded to full trial before the Hon Nthuku SRM. After a full trial the learned trial magistrate in her judgment dated October 22, 2013 dismissed the appellant’s suit on the ground that she had failed to prove that the respondent was the biological father of the minor MN. The learned trial magistrate dismissed the DNA report from the government analyst as unreliable. That judgment triggered Appeal No 215 of 2013.

26. In appeal No 99 of 2012, the Appellant set out 16 grounds of appeal. That the learned trial magistrate erred:1. In hearing and determining the two applications giving rise to the said ruling/order exparte and on a date which had not been fixed for such hearing, and without notice of the said hearing to the Appellant(the plaintiff before the lower court)2. In hearing the said two applications on a date which had been fixed as a mention for a totally different purpose.3. And misdirected himself in law and fact in finding that the said applications were not opposed by the appellant when in fact the appellant had filed two affidavits which she intended to rely in opposition to the said applications, and when in fact the law does not require a party to file any such affidavits before she can be heard, and when no order or time limit had been set either by the court or by the law for the filing of such affidavits or indeed any other response to the applications.4. In law and in fact by ordering for a repeat DNA test for the Minor Subject, while a DNA test had already been done by a legal and statutory body and a report thereof filed in court, and when that report had not been interrogated in court to determine its veracity or otherwise, and when that report had not been set aside or rejected by the court.5. By ordering for a repeat DNA test at private laboratory without establishing or ascertaining the laboratory existence, its legality, or its accreditation and capacity to carry out forensic or DNA testing.6. In ordering for a repeat DNA test at a private laboratory without establishing its repute, its proprietorship, or whether the respondent had any association with the said private enterprise.In ordering for a repeat DNA test without hearing the Appellant’s input on the matter or even on the choice of laboratory.In ordering for a repeat DNA test at a private laboratory which had not been mentioned anywhere in the application filed by the respondent and giving rise to the said order.7. In ordering for the repeat DNA test at a private laboratory without putting in place any safeguards for the integrity of the process e.g. Police escort, custody and safety of the report before the same is filed in court, etc.8. In law and in fact in suspending payment of maintenance money by the respondent (then the defendant) for the minor subject, when such maintenance had been ordered by the court after exhaustively hearing both parties on the matter.9. In suspending the said maintenance without hearing the appellant on the matter, and though she intended to and wished to contest any such move.10. In suspending maintenance for the minor subject without enquiring into or making any provision for the upkeep of the minor subject.11. The Appellant and by extension the minor subject have been condemned unheard, and the rules of natural justice have been flouted.12. In law and in fact in taking ex parte proceedings and making orders which are totally against the best interests of the minor subject, and contrary to the law.13. The exparte proceedings and orders by the learned magistrate are bad in law and should be quashed and set aside ex debito justitiae.14. It is in the interest of justice and in the best interests of the child/subject to quash and set aside the said exparte proceedings and orders.

27. The appellant prayed for the appeal to be allowed and the court be pleased to order as follows:-1. That the ex parte proceedings of April 18, 2012 and the ex parte ruling and orders dated April 25, 2012 in Nakuru Chief Magistrate’s Court Children Case Number 42 of 2011 be and are hereby quashed and vacated/set aside, and the respondent’s applications dated October 3, 2011 and November 29, 2011 before the children’s court be heard afresh inter partes2. That costs of this appeal be borne by the Respondent.

28. The parties through their respective counsel canvassed the Appeal by way of Written Submissions. On March 7, 2022 Ms Magana for the appellant indicated she had filed her submissions on that day. The Respondent’s counsel Ms Wangari was given time to respond. The record does not bear those submissions by Ms Magana. The only ones filed on that date are with respect to Appeal No 215 of 2013.

29. Only the Respondent’s submissions are on record in this appeal.

Respondent’s Written Submissions In Appeal No 99 of 2012 30. The Respondent filed his submissions on June 27, 2022. He submitted on the following issues;I.Whether the court erred in ordering that an alternative neutral DNA test be carried out after hearing the applications ex-parte;II.Whether the appellant was denied the right to be heard;III.What is the legal basis of a DNA test; &IV.Whether the court erred in staying the order requiring the respondent to pay Ksh 5, 000/= for child support.

31. On Whether the court erred in ordering that an alternative neutral DNA test be carried out after hearing the applications ex-parte, the respondent submitted that having denied the paternity of the minor, it was his right in the best interest of the child to be determined that he was really the father of the minor. He stated that even though he had consented to the first DNA test, he had clearly expressed his doubt on the integrity of the results through the application dated October 3, 2011 which was served on the Appellant. He stated that it was in the best interest of the child that paternity of the minor is ascertained in order to help the court make a just determination on how to share parental responsibility between him and the appellant, and to also resolve the issue of custody of the child.

32. He submitted that he adduced evidence through his application dated October 3, 2011 which showed that it was possible the first DNA results had been influenced by third parties known by the Appellant which evidence was not rebutted by the appellant and as such he had established a prima facie case to warrant the grant of the orders for an alternative DNA test.

33. It was his submissions that the Appellant had not filed her responses to the applications dated October 3, 2011 and November 29, 2011 despite having a chance to do so. He submitted that the Appellant’s assertion that she had filed two affidavits which she intended to rely on was not communicated either to the trial court or to him.

34. He therefore contended that the court was simply exercising its inherent jurisdiction in ordering an alternative DNA test to be conducted. To bolster this position, he relied on the case of DNM VS JK [2016] eKLRwhere the court stated as follows: -'What is however clear is that the court has an inherent jurisdiction to order or not to order DNA testing where a child is involved and where there is no child. the essence, it appears, is that a court ought to be ready to assert its role of resolving disputes fairly and one way of doing so is by discovering the truth even through compulsion.'

35. The Respondent similarly relied on the case of EWG vs JMN & Another [2017] eKLRwhere the court held as follows;'However, a court may exercise its inherent jurisdiction and direct that a party submit to a DNA test in order to determine the truth of paternity where such determination will serve the interest of justice.'

36. With regard to the second issue, Whether the appellant was denied the right to be heard, the respondent submitted that the appellant was not denied the right to be heard and the two applications were heard ex parte because they were unopposed.

37. With regard to the third issue, what is the legal basis of a DNA test; the Respondent argued that the DNA test was is in the best interest of the child as per article 53(2) of theConstitution and Section 4(2) of the repealed Children’s Act and as was stated in FKW (suing as the mother and next friend of GDW (minor) vs DNM {2015} eKLR where the court held that it was the Constitutional right of the child to know who his parents were.

38. He also relied onDKK vs CWN [2019] eKLR where the court while dealing with an issue where paternity of the child’s father had been questioned pronounced itself as follows: -'As long as the issue of paternity was raised and remains unresolved, the appellant cannot be compelled legally to maintain the child and the circus will not end in the absence of conclusive determination to end litigation and promote and sustain the best interest and welfare of the child one and for all.'

39. Further that in PKM vs Senior Principal Magistrate Children’s Court At Nairobi & Another [2014] eKLR the court adopted the test developed by the Supreme Court of India in Bhabani Prasad Jena vs Convener Sec Orissa, Civil Appeal Nos 6222-6223 of 2010, that the test would be eminently needed to establish the truth and reach a just determination.

40. The respondent submitted that ordering a DNA test would serve the interests of justice. For this proposition the respondent relied on EWG vs JMN & Another (2017) eKLR.

41. On the last issue, Whether the court erred in staying the order requiring the respondent to pay Ksh 5, 000/= for child support, the Respondent submitted that the court did not err by staying the order requiring him to pay Kshs 5,000/= for child support because it was in the best interest of the child, that the results of the first DNA test were marred with irregularities, that he had a right to know whether the minor was his biological child so as to justify his provision towards her maintenance and that the order was as a result of the court exercising its inherent jurisdiction to order an alternative neutral DNA test.

42. From the foregoing the following issues stand up for determination.I.Whether the Appellant was denied the right to be heard.II.Whether the orders of April 25, 2012 should be set aside.

Analysis Issue No 1- Whether the Appellant was denied the right to be heard 43. It is not denied that the two applications dated October 3, 2011 and November 29, 2011 respectively were duly served upon the Appellant. The appellant says she filed two affidavits but there is no evidence that the same were served on the respondent.

44. A perusal of the record however reveals that the record speaks for itself. The Hon GM Mutiso SRM had fixed the matter for mention to confirm whether the respondent had complied with the interim order to pay Kshs 5,000/= per month for the maintenance of the minor. On that day the court proceeded to hear the applications without notice to the appellant that the matter was for hearing. Neither was there any evidence that the appellant was informed of the date of the Ruling.

45. In Mrs Rahab Wanjiru Evans vs Esso (K) Ltd Civil Appeal No 13 of 1995 [1995-1998] 1 EA 332, the Court of Appeal held that when the matter is fixed for mention, it cannot be heard unless by consent of the parties and that orders cannot be made before hearing submissions of the parties. This position was reiterated in Republic vs Anti-Counterfeit Agency & 2 Others Ex parte Surgipharm Limited, Nairobi JR Miscellaneous Application No 11 of 2012 [2014] eKLR and Paul Odhiambo Ogunde vs Maersk Kenya Limited [2016] eKLR.

46. Article 50 (1) of theConstitution underscores the right to be heard. It provides that:'Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.'

47. Further to the foregoing, Halsbury Laws of England, 5thEdition 2010 Vol 61 para 639 states that:'The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him, and a fair opportunity to be heard, (the Audi alteram partem rule) is a fundamental principle of justice.'

48. In Savings and Loan (Kenya) Limited vs Odonyo [1987] eKLR the court held that;'The very foundation upon which our judicial system rests is that a party who comes to court shall be heard fairly and fully. A judge who does not hear a party before him or the party's advocates offends that fundamental principle and it then becomes the duty of this court to tell him so. People come to Court as a last resort and we Judges are employed to hear them and then determine their cases'.

49. It is evident that the appellant was not notified of the hearing date. Whether or not the application was opposed, the court owed the appellant the duty to confirm that the appellant was aware that the matter was going to be heard on that date. The learned magistrate proceeded to hear the matter in the appellant’s absence without notice effectively shutting out the voice of the child. Worse still the court heard the application on a mention date. In addition, she was not notified of the date for the Ruling. All in all the right of the appellant and effectively, the child, to be heard was violated.

Issue No 2- Whether the orders of April 25, 2012 should be set aside 50. It is evident from the respondent’s arguments that he approaches this appeal as though it is the very first time, he was seeking an application for DNA test. But the case is that he was seeking for a repeat DNA test. He needed to persuade the court that the one he got via the consent order had a problem. However, the fact is that he presented himself to the government Chemist willingly together with the appellant and MN under the escort of a police officer. His DNA sample was taken by someone he saw with his own eyes, and so were the samples of the appellant and the MN. These samples were left at the government chemist to test in accordance with their processes. The appellant only raised an issue when the results came out, and what was the issue? That some of his friends were aware of the outcome before the court became aware of the same. For that reason, he believed that they had an influence on the outcome.

51. To support this belief, he annexed excerpts of SMS or WhatsApp texts which he alleged were an exchange between him and the persons he named in his affidavit as having known the results before the court. There was no evidence to show the source of the alleged texts. For a person complaining about the authenticity of the government analyst report one would have expected him to do better in presenting evidence that was authenticated by the requisite authorities. How would the court have ascertained the source of the alleged texts and their relationship with the DNA results in this case? How could such texts allegedly between him and persons who were not parties to this case be said to have affected the authenticity of the DNA report? Clearly the learned trial magistrate erred in finding fault with the DNA report on the basis of unsubstantiated evidence by the respondent. Even if the appellant had not filed any response, the learned magistrate was still required to establish that there was evidence to support the prayer for the orders sought. In this case there was none, in any event the learned trial magistrate overlooked the fact that the respondent did not raise any objection to the report at the point it was produced.

52. With respect to order on maintenance for the child, the learned trial magistrate also erred in staying the same yet the report that had been obtained by consent of parties and produced as evidence with the consent of the parties. In any event the consent was still in force.

53. Hence the orders made on the April 25, 2012 ought not to have been made at all. The learned trial magistrate ought to have given dates for the hearing of the application inter partes, and ought to have ascertained that the parties had been served before proceeding to the hearing.

54. Let me add here that it is imperative in children matters that the magistrate keeps in mind the guiding principles under Section 95 of the Children Act No 29 of 2022, the effect of whatever order the court is making on the best interests of the child. An ex parte order where the representative of the child was not notified and has not been heard will not only prejudice the child but will also lead to unnecessary delay. This is because the court ought to know that the absent party will more often than not move to set aside those proceedings and the resultant delay is unnecessary.

55. The matter took another twist because as these matters were pending resolution another learned Magistrate Hon Nthuku proceeded to hear the suit and to finalise by dismissing the appellant’s suit.

56. The appellant was not satisfied with that decision and filed appeal No 215 of 2013 on the grounds that the trial Magistrate erred:a.In law and fact in finding that paternity of the minor child/subject had not been proved, in spite of the conclusive DNA test results on the matter from the Government Chemist.b.In disregarding and failing to uphold the DNA test results from the Government Chemist, in spite of there being no contrary test or test results on the paternity of the minor child/subject.c.And misdirected herself in law and in fact by admitting in evidence, upholding, according evidential value to and relying on, an alleged comparative DNA test result from Lancet Laboratories, when such alleged result was not about and did not involve or concern the minor child/subject or the parties in the suit.d.In law and in fact in admitting in evidence the said alleged DNA test result from LANCET Laboratories, when the same was not an authenticated document, was not signed, did not disclose the maker thereof, and the alleged maker thereof was not called to testify thereon or to produce the same.e.In admitting and relying on the said alleged LANCET Laboratories Report as a computer-generated document without meeting the legal threshold and requirement for the production of such document under the Evidence Act.f.And misdirected herself in law and in fact in admitting and relying on the said LANCET Laboratories DNA test result, while the oral testimony in support of the same clearly pointed to the inadmissibility and lack of credibility of the said documents.

h.In not acting in the best interest of the child/subject contrary to the Constitution of Kenya 2010, and contrary to the Children Act.In law and in fact in admitting in evidence for the defence several contested documents, when the said documents and or the production thereof did not meet the legal threshold and criteria stipulated in the Evidence Act and in the law generally.i.In relying on and basing her judgement on alleged defence evidence of sms text messages and alleged prior disclosure of the DNA test results from the government chemist, when no such evidence was tendered by the defence or at all during the trial, and when the plaintiff was thus never accorded an opportunity to test any such alleged evidence through cross-examination or at all.j.In disregarding and dismissing the sole and scientific and conclusive evidence on the paternity of the minor child/subject, when there was absolutely NO evidence tendered to the contrary.k.In NOT making any or any adequate financial provision for the maintenance of the minor child/subject as against the respondent herein, when the respondent admitted income would well support such adequate maintenance.l.That the quantum of maintenance provisionally provided for the minor subject as against the respondent herein (had the entire case not been dismissed), is far too low and inadequate, and NOT commensurate with the Respondent’s income and station in life and not commensurate with the standard of living expected for the minor child/subject.m.In law and fact in provisionally apportioning heaviest financial burden for the minor child’s maintenance to the appellant herein, in spite of her much lesser income as compared to the Respondent’s income.n.In finding the Appellant and the Respondent should agree on the school to be attended by the minor subject, and on the issue of access to the subject, while the evidence on record and the circumstances of the case do not support any such finding, and when such a scenario would not be viable and would be absurd and only cause hardship to the minor/subject.o.The entire judgement of the subordinate court is against the weight of evidence tendered before the court.p.The entire judgement of the subordinate court is totally against the best interest of the minor child/subject herein. 57. The appellant urged the court to allow the appeal and quash, set aside and or vary the impugned Judgement and decree of the Lower Court, and enter Judgement for the Appellant against the Respondent as prayed for in the plaint for provision of maintenance by the Respondent in such specified and adequate sums and terms as this court may order.

58. The Appeal was canvassed via written submissions.

Appellant’s Submissions 59. The appellant was represented by Ms Gatu Magana. She filed the Appellant’s submissions on March 7, 2022.

60. Regarding the paternity and DNA results, counsel submitted that the trial court erred by holding that the Appellant did not conclusively prove that the Respondent was the biological father of the minor. She made reference to the consent order dated April 11, 2011 DNA test was done at the Government Chemist and the results conclusively confirmed that the respondent is the biological father of the subject.

61. Counsel argued that the government chemist’s analyst who did the analysis testified in court, defended his report and produced the same as Exhibit 1. The defence did not produce any shred of evidence before the trial court to support the suspicion of a possible interference with the results by the appellant or the Government Chemist. There was no evidence to prove that he had received telephone text messages concerning the test results before the same were produced in court and that even if those text messages were to be believed, they would not be evidence of interference with the results.

62. The Respondent’s counsel did not question the DNA result when it was produced in court by the police officer on May 17, 2011. That the subsequent allegations regarding text messages and alleged interference with the results were purely an afterthought meant to muddy the waters and delay the day of reckoning against the respondent.

63. Counsel argued that the appellant was never accorded an opportunity to test the veracity and strength of the respondent’s evidence through cross examination in accordance with the provisions of Section 146 of the Evidence Act.

64. She submitted that the incontrovertible DNA results on record confirming the Respondent is the biological father of the minor is from the Government chemist. She stated that the onus of proof as provided for under section 107 and 108 of the Evidence Act lay on the respondent to prove that the DNA results from government chemist were interfered with but he failed to discharge that legal burden.

65. That the evidence on record shows that the appellant had sexual relations with the respondent since the respondent even confirmed that the appellant had been in his house and to his bedroom at night after a night out with him and that the respondent’s assertion that he did not know how the appellant got to his house or his bedroom was false and preposterous. She submitted that there was no evidence to prove the respondent’s allegation that he was drugged on the material night, or that when he found the appellant in his bedroom, he got the police to throw her out.

66. It was the Appellant’s submissions that the evidence of Lancet Staff and the alleged victim of faulty government chemist DNA test Result was of no probative value for reasons that:- The Lancet Report bore no relation or relevance to the case before court nor did it involve the parties herein; the report of the Government Chemist was filed in court; the Lancet Laboratory Report was not signed by doctor. Carolyne Tumer the alleged analyst, neither was she or any of the persons who allegedly carried out the examination were called to testify.

67. Counsel argued that the trial court fell into error when it admitted the electronic record (Lancet Laboratories Report) without ensuring it met the mandatory provisions of Section 106B of the Evidence Act.

68. To buttress this position the Appellant’s counsel cited the case ofPeter Ngethe Ngari T/A Pnn Funeral Services Vs Standard Group Limited Plc & Another [2020] eKLR where this court while deliberating on the issue of production of electronic documents stated that any party seeking to rely on electronic records must comply with the mandatory provisions of section 106 B of the Evidence Act.

69. With respect to maintenance, counsel argued that Article 53 (1) (e) of theConstitution of Kenya 2010 provides for equal responsibility of the father and mother whether they are married to each other or not. It is on this premise that counsel contended that the itemized provisional maintenance by the trial court was too far low, inadequate, not commensurate with the respondent’s income and station in life, and not commensurate with the standard of living expected for the child.

70. She faulted the trial magistrate for inexplicably apportioning the heavier financial burden for the minor’s maintenance to the Appellant in spite of her lesser income as compared to that of the Respondent.

71. The Appellant’s Counsel argued that 'equal responsibility to provide for the child' as provided for in Article 53 1(e) of theConstitution does not connote arithmetical equality in terms of funds to be provided for the maintenance. That such interpretation would depart from the spirit of theConstitution, would infringe on the rights of the child and would not be in the best interest of the child. She submitted that it would be preposterous to mandate the parties herein to equally provide for the monetary needs of the child where obviously the father commands a lot more financial resources.

72. She contended that parental responsibility and maintenance encompasses a lot more than material provision. That it includes nurturing, parenting, loving, guidance and non- school education of the child, and the requisite physical presence of the parent in all this for the general and wholesome well-being, including the emotional and psychological health of the child which the Appellant herein had provided.

73. She stated that the sum of Kshs 54,000/- per month prayed for by the Appellant to cater for food, shelter, electricity, water, clothing, medical care, house-help, entertainment and sundry expenses (toiletries, toys etc) for the child was not excessive. She argued that the figure was reasonable considering the station of life of the parents of the child and the high cost of living in this country.

74. The counsel urged this court to order the respondent to shoulder a higher burden considering his income and the fact that the appellant has been solely shouldering the upkeep and maintenance of the minor since when the lower court’s impugned judgment was rendered.

75. It was the Appellant’s submissions that the impugned judgment grossly infringed on the subject's rights and did not consider her best interest, and she urged this court to correct that anomaly.

Respondent’s Submissions 76. Mr Waiganjo appeared for the Respondent. He filed the Respondent’s submissions on June 27, 2022.

77. On whether the paternity of the child was conclusively proved by the DNA tests results from the Government Chemist, Counsel submitted that upon conducting DNA the Government Chemist was to deliver the DNA results to court in a confidential manner. However, the same were disclosed to third parties who were close to the Appellant herein even before they were formally received in court and such conduct caused the respondent to suspect foul play in the said results.

78. He stated that the respondent produced evidence in court to show he received text messages from third parties working with the Ministry of Health concerning the same DNA results that was produced before the court at a later date and therefore it was not far-fetched that the DNA results were doctored.

79. It was Counsel’s further submissions that the manner in which the results were conducted was questionable because Dr Sang (PW2) in his evidence stated that he did not take the sample from the parties. He submitted further that Dr Sang testified that he did not know who had taken the samples and only came across them when he was doing the analysis. That the same analyst testified that there was a probability of interference with the samples before they reached his desk.

80. Counsel also submitted that the defence witness Grace Mugure (DW2) confirmed that Dr Sang had previously conducted a DNA test on her child and concluded that the alleged father was not the child’s father only for a second DNA test done at Lancet Kenya to prove the contrary. He submitted that this evidence diminished the credibility of the DNA test conducted at the Government Chemist. He argued that based on the unreliability of the chain of custody of the DNA samples by the Government Chemist, its DNA test results could not be relied on as conclusive proof of paternity.

81. With respect to the admissibility of the evidence from Lancet Laboratories, it was the Respondent’s submissions that the general manager and officer in charge of the lancet laboratories where the document was produced was familiar with the procedures of carrying out DNA tests in the lab and therefore was competent to give evidence on the report. He cited Republic vs Ronoh Khalif Ahmed [2015] eKLR where the court observed that:-'This means that such a document need not be produced by the maker. It also means that the court may or may not require the maker of the document to come to court. It thus means that the document is admissible whether or not the maker comes to court. The postmortem form is an official document, and in my view it can be produced by Dr Bashir. He is the custodian. He can be cross examined on its contents. If there is no evidence or proof that it is done by Dr Menza, then it is for the court to decide on its evidential value looking at the totality of the evidence. Otherwise the law in my view, does not say that the document is not admissible merely because the maker is not available or because proof beyond reasonable doubt has not been made at the preliminary stage, that the document was actually prepared by Dr Menza.'

82. That further the defence had adduced through DW2, and DW3 to prove that results of the DNA report from the government chemist report done by SK Sang was found to be erroneous after a second DNA opinion.

83. On the issue as to whether the learned magistrate erred in the financial provision she made for the maintenance of the child, the respondent’s counsel submitted that the evidence on record was that the Respondent did not have sexual relations with the appellant. Further that when the child was born the appellant never asked him to pay the hospital bills, on top of omitting his name as the child’s father in her Birth Certificate.

84. Further, Counsel submitted that the Appellant was an incredible witness on various grounds: that in her plaint she pleaded she had cohabited with the Respondent in the year 2009-2010 but during hearing she disputed ever cohabiting with him; she produced receipts totaling to Kshs 9,000/= from Frace Ventures Company Limited as a proof that she had paid rent to it but on cross examination she disassociated herself with the company claiming that the only association she had with them was that she had requested to use the postal address of one of the directors; she also deponed in her Affidavit dated July 18, 2011 that she was not in any business with the said company yet there was a letter from the Registrar of companies showing her to be one of the Directors of Company; that in her testimony she claimed to be a residence of Kiti yet DW4, the Chief Security officer working with Kenya Power and Lighting Company testified that she had been paying electricity bills for a plot located in Maili Kumi in Bahati. Counsel urged the court to find the Appellant untruthful, citing Malik Mohamed Musa vs Republic [2020] eKLRwhere the court observed:-'In my Judgment the victim’s evidence did not come within a mile of the test laid down in the case of Kyiafi vs Woro {1967} GLR 463 AT 467 the Court held:'It must be observed that the questions of impressiveness or convincingness are products of credibility and veracity, a Court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinions it forms of the veracity of witnesses. However a Court has to test its impression as to the veracity or truthfulness of oral testimony of a witness against the whole of the evidence of that witness and other evidence on record.' (See also Ackom v R 1975 GLR 419)'

85. Counsel submitted that the burden to prove paternity lay on the Appellant and since the same had not been proved the issue of maintenance, could not arise. He relied on the provisions of section 107 and 108 of the Evidence Act and the case ofN E O vs H W K [2018] eKLR referred to in Yunes Muniafu Makolwe vs Moses Makpkha & 3 Others [2016]eKLR where the court stated that;'The moment the respondent denied the fact that the appellant was the biological father of the child and the appellant insisted that he was, the burden of proof lay on the appellant to prove the fact as he wished the court to believe he was the biological father.'

86. In sum, it was the counsel’s view that the trial magistrate considered all the evidence before her and her decision was proper in the circumstances.

Issues for Determination 87. The issues that arise for determination are as follows:-i.Whether the appellant did via the DNA report from the Government Chemist dated May 4, 2011 establish that the respondent was the biological father of MN?ii.Whether the respondent is bound to maintain MN?iii.What is the contribution of each of the parents?iv.What orders should be granted

Analysis Whether the appellant did via the DNA report from the Government Chemist dated May 4, 2011 establish that the respondent was the biological father of MN? 88. The Appellant asserts that the Respondent is the biological father of the child herein while the Respondent denies the same. A person who alleges must prove. Sections 107 to 109 of the Evidence Act provides as follows:'107(1)Whoever desires any court to give judgment as to the legal right and liability dependant on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies with that person.108. The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on the other side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact lie on any particular person.'

89. In Yunes Muniafu Makolwe vs Moses Makpkha & 3 others, (2016) eKLR the court stated that the moment the respondent denied the fact that the appellant was the biological father of the child and the appellant insisted that he was, the burden of proof lay on the appellant to prove the fact as he wished the court to believe he was the biological father. In Wilfred Koinange Gathiomi vs Joyce Wambui Mutura & Another, [2016] eKLR the court held that DNA testing was the only way to resolve the paternity issue.

90. From the evidence on record, it is not in doubt that there is only one DNA report on record, the report from the government analyst that was obtained and produced in evidence by consent. That report established that the respondent is the biological father of MN. No other report was produced during the hearing. The respondent called witnesses who came to say that their own reports had problems. he did not produce any evidence to show that his own report had issues. He knew that he had sought an alternative DNA and that those orders had been stayed pending the inter partes hearing of the application against those impugned orders. He however sought to proceed with the hearing knowing very well that he did not have the alternative 2nd results. He knew very well that the only challenge to the report from the government analyst would have been another report. Short of that the evidence produced by the persons from Lancet Laboratories was of no consequence and the learned trial magistrate misdirected herself in relying on it.

91. What stands out is that the Subordinate Court was aware of the pending Ruling from the High Court with respect to the respondent’s request for an alternative DNA test but proceeded to hear the matter all the same.

92. The issue raised by the Respondent that the DNA results were well known to other parties way before they were produced in court is no consequence as he did not establish any nexus between that and the analysis done by the government analyst.

93. There was absolutely no evidence to prove that the DNA results from the Government Chemist had been interfered with and the court erred in holding that the DNA result was erroneous.

94. On the twin issues as to Whether the respondent is bound to maintain MN? and What is the contribution of each of the parents? The High Court had stayed the subordinate court’s order of stay of execution. The same court proceeded to find that the Respondent was not bound to maintain the child while there was an order from the High Court Ouko J as he then was) effectively stating that the Respondent was liable to pay Kshs 5,000/= per month for the upkeep of the child. By dismissing the appellant’s claim when this order were still in force the learned trial magistrate effectively overturned a subsisting order of the superior court.

What orders should be granted in the end 95. From the foregoing it is evident that these two appeals succeed.a.The order of the Hon GM Mutiso allowing a second DNA Test, herein be and are hereby set aside.b.The order of the Hon GM Mutiso staying the payment of maintenance of the child be and are hereby set aside.c.That judgment of the Hon H Nthuku dismissing the appellant’s suit and claim on behalf of MN and all the orders emanating from that judgment be and are hereby set aside.d.The interim order of maintenance, if it had stopped be and is hereby reinstated pending (f).e.Due to the flux of time, and the fact that a child’s welfare cannot wait, the respondent be and is hereby ordered to pay half of the child’s school fees pending order (f).f.This matter be and is hereby remitted for hearing of evidence with respect to the maintenance of MN and the contribution of each of the parents.g.To expedite the same each party is directed to file and serve any affidavit evidence to that end and related submissions within 14 days hereof. The Appellant will have 7 days, and the respondent 7 days upon service.h.The matter be mentioned before the magistrate in charge of the Children’s Court Nakuru on or before the October 24, 2022 for directions on hearing and the matter be heard on priority.i.The appellant is awarded costs in appeal 99 of 2012. j.In appeal no 215 of 2013 each party to bear their own costs.k.It is so ordered.

DATED THIS 16TH DAY OF SEPTEMBER, 2022. Mumbua T. MathekaJudgeSIGNED AND DELIVERED VIA EMAIL THIS 6THDAY OF OCTOBER, 2022. Mumbua T. MathekaJudgeC/A JenniferGATU MAGANA & CO. ADVOCATESWAIGANJO &CO. ADVOCATES