MW v GWM [2025] KEHC 3661 (KLR)

MW v GWM (Civil Appeal 104 of 2019) [2025] KEHC 3661 (KLR) (Family) (18 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3661 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal 104 of 2019

PM Nyaundi, J

March 18, 2025

Between

Dr MW

Appellant

and

GWM

Respondent

(Being an appeal from the Judgment of the Honourable T. B NYANGENA Senior Principal Magistrate delivered on 8th February 2019 in Chief Magistrate’s Court- Children’s Case No. 920 of 2017 GW versus Dr. MW)

Judgment

1. Vide Memorandum of Appeal dated 21st February 2019, the Appellant challenges the judgement of the Court delivered on 8th February 2019 in Chief Children’s Case No. 920 of 2017. The Appellant challenges the decision of the Court to order that he pays the sum of Kshs 30,000, ‘he has offered as an employer’

2. The Respondent initiated the Case in the lower court vide Plaint dated 13th July 2017, in which she pleaded that she and the Appellant had an intimate relationship that bore the minor herein.

3. The Appellant did not file a defence, but in response to an application for interim maintenance dated 13th July 2017, he filed a replying affidavit sworn on 26th July 2017. Subsequently the Court directed that the parties undergo a DNA test to confirm paternity of the minor. The Appellant presented a sample for testing and vide report dated 31st October 2017, the Government Chemist concluded that he was not the father of the minor.

4. The respondent challenged the report claiming tampering and irregularites. The Court then directed that the parties undergo a second test. At this juncture the appellant declined to present himself for the test.

5. The Court then directed that the matter proceeed to hearing. The Respondent testified as a sole witness for her case and was cross examined by counsel for the Appellant. The Counsel for the Appellant closed the defence case without calling witnesses.

6. The Court then retired to write its judgment. In its 2 page judgment, found at pages 32-34 of the record, the Court found that it had not been established that the Appellant was the father of the minor as the DNA test ‘ was not positive’, but proceeded to order that the ‘Defendant shall continue to pay the Kshs 30,000/- he has offered as an employer’. It is this finding that the Appellant appeals against.

7. Suffice it to state that parental responsibility under Section 31 of the Children Act vests in parents. The Court erred in vesting parental responsibility on a person who is not a parent to the Child. The respondent failed in establishing the the Appellant was the father of the minor. This responsibility rested with her even in the absence of a defence. No evidence of paternity was placed before the Court.

8. It is therefore not defensible to impose on the Appellant the responsibility to provide for the Child.

9. In the circumstances the Appeal is allowed, the orders of the trial court are vacated. Each party will bear their own costs.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF MARCH, 2025. P M NYAUNDIJUDGEIn the Presence ofKanja Court Assistant