In re PGM (Minor Suing through her Next Friend) (Civil Appeal E080 of 2024) [2025] KEHC 36 (KLR) (10 January 2025) (Judgment)
Neutral citation:
[2025] KEHC 36 (KLR)
Republic of Kenya
Civil Appeal E080 of 2024
DKN Magare, J
January 10, 2025
IN THE MATTER OF PGM (Minor suing through her next friend)
Between
LKM
Appellant
and
RMB
Respondent
(Being an appeal against the judgment of B.O. Omwansa – Snr. Principal Magistrate in Kisii CM Children’s Case No. 71 of 2017 dated and delivered on 16th April, 2024)
Judgment
1.This an appeal against the judgment of B.O. Omwansa –SPM given in Kisii CM Children’s Case No.71 of 2017 dated and delivered on 16th April, 2024.
2.The Appellant was the Plaintiff in the lower court and the mother of the minor herein. The Respondent was alleged to be the father of the minor.
3.The Appellant pleaded in her plaint dated 22.9.2017 that she cohabited with the Respondent from 2012 until sometime in 2015 when he became cruel, irresponsible and violent. They informally separated in 2016. The marriage was blessed with one issue PGM born on 19.7.2015.
4.The Respondent filed defence on 24.10.2017 where he denied that he ever married the Appellant. He stated that the birth certificate was forged and the Appellant was an imposter. He stated that PGM was not known to him and he is under no obligation to maintain.
5.The matter proceeded earlier and was dismissed for lack of a reasonable cause of action. The Appellant appealed and the matter was ordered to proceed to full trial. Upon proceeding to full hearing, the children’s court dismissed the suit for lack of merit hence this appeal. The court heard the matter and dismissed it on 16.4.2024 for lack of merit. The Appellant was aggrieved and filed this appeal and set forth the following grounds of appeal.a.That the learned trial magistrate erred in law and fact by failing to appreciate the law and evaluate the evidence placed before him before arriving at the decision.b.That the learned trial magistrate erred in law and fact by failing to take into account the evidence tendered in court and the submissions brought before him before arriving at the impugned decision.c.That the learned trial magistrate erred in law and fact by failing to appreciate the law on the principle of loco parentis.d.That the learned trial magistrate erred in law and fact by falling to appreciate the provisions of Section 94, 114 of the Children’s Act as read together with Section 22 of Registration of Births and Deaths Act.e.That the judgment of the learned trial magistrate was therefore not well founded in law and hence null and void.f.That the judgment of the learned trial magistrate was therefore wrong in law and unfounded.
Evidence
6.The court ordered for DNA test. The first report dated 14.2.2018 ruled out the Respondent as the father. The Appellant sought time to appoint an advocate. The Appellant sought that parties undergo another DNA test. The court ordered another DNA test on 2.8.2018. The parties took their time before DNA test was carried out and the court continued to order for DNA test for over 2 years. The DNA report ordered on 16.1.2020 was carried out and a report filed dated 21.2.2020. The suit was dismissed summarily on 21.12.2021. It was later reinstated by the High Court in Kisii HCCA 50 of 2020. The decision is reported as PGM (Minor suing through her next friend LKM) v RMB [2021] eKLR. In the said case, the court stated as follows:22.The appellant has sought to rely on the doctrine of loco parentis. She relied on the case of ZAK and another vs MA and another [2013] eKLR where the court held that step parents could assume parental responsibility in certain circumstances based on Article 53 (2) of the Constitution and sections 23 and 94 of the Children Act. Section 23 defines what constitutes parental responsibility while section 94 provides the factors to be considered by the court in directing step parents inter alia to make financial provision for a child accepted as a child of the family. The appellant had no opportunity to pursue this line of argument before the trial court, as the court dismissed her suit before it could be heard.23.The court in the case of Patel v E.A. Cargo Handling Services Ltd. [1974] E.A. 75 At P. 76 defined a triable issue as an issue which raised a prima facie case which could go to trial for adjudication. The appellant was only required to establish a prima facie case and needed not have raised an issue which had to succeed upon trial. On perusal of the pleadings and without saying much, I find that the case raises triable issues and is not a frivolous one. I therefore find that the trial court dismissed the suit prematurely.
7.The matter was fully heard. PW1, the Appellant testified that she had a relationship where she cohabited with the Respondent and it resulted in the issue herein. The Respondent failed to take care of the minor and was irresponsible. According to her, the minor was a child of the union. She testified that there were transactions showing rent and Mpesa sent to her. On cross examination, she stated that they met in a cybercafé. Her evidence was that she had a landlady, Sabina from 2012 May to 2016 April. She stated that she was an attendant at the cyber café. She admitted that both DNA results showed that the Respondent was not the father. PW2 Ronah Kerubo is a clan elder. She testified that on 23.3.2017 the Respondent sent her 5,300/= when the matter was at the chief’s office. This she said was for rent.
8.On cross examination she stated that the chief had indicated that the Respondent had denied paternity. She also stated that the money sent to her was not sitting allowance for the case.
9.PW3 Alloys Ochogo testified that he was a property manager, and knew the Appellant for 8 months since December 2016, when she took over the house the Appellant was staying. They issue receipts for rent paid by the Respondent. The Appellant was also a tenant. The landlady was said to be Scholastica (not the one referred by the Appellant - Sabina).
10.PW3 produced a birth certificate for the minor with names of both parties. On cross examination, he stated that he did not know who the Applicant was, but the informant was a parent, not a midwife for a child born in hospital! He stated that registration was carried out without supporting documents, except one’s from Kisii Teaching and Referral Hospital. The Appellant closed her case without producing Mpesa statements which had been marked for identification.
11.The Respondent was PW1. He stated that he had no relationship with the Appellant. They never lived together, as from 2012 to 2020 he was staying at Maili Mbili. Her landlady was Elizabeth Bosire. He stated that he recalled that his documents were stolen on 21.4.2016 and reported to Kisii police station. He also relied on the 2 DNA reports. He stated that he never dealt with PW3. He referred to those documents as forgeries. According to him, he only met the Appellant while studying for PhD. He could photocopy and send Mpesa for payment or cash. He never paid maintenance for anyone. He stated that he paid for services at West Net between 2012-2015. According to him, he never got services beyond 2015. He never paid any money in 2017. The only money he sent was to the village elder on 7.2.2017 to give directions on the dispute as he had been sued at the chief’s place. He was not aware that the stolen identity card was used to prepare the birth certificate. He stated that he did not interact with Fourcliff Consultants.
12.DW2, Dr. Charles Maina testified that he was a Pathologist. He produced the report carried out on 21.3.2020 which excluded the Respondent as a biological father of the child. He gave out his detailed registration details. He supported the veracity and authenticity of the DNA results from a scientific view point.
13.DW3 was the Respondent’s landlady Elizabeth. She stated that the Appellant was her tenant from 2012 -2020 (typed copy indicated 2017) when he moved out to his own residence. She also knew the wife AB.
14.DW4 Kipngetich Bernard produced the government analyst’s report. The report excluded the Respondent as the biological father. He was cross examined on the differences with the Lancet report and stated that he was not aware of the second report.
15.DW5 Jared Mekenye testified that DW1 used to frequent West Net Technologies. He stated that he never handled their account.
16.The court found that the Respondent is not the one who sired the minor in view of the DNA results. He dismissed the suit with no order as to costs.
Analysis
17.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
18.The duty of the first appellate Court was in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the court in their usual gusto, held as follows;-
19.The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017)eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-
20.No parole evidence is admissible to contradict, vary or alter the terms of any written instrument. In Prudential Assurance Company of Kenya Limited V Sukhwender Singh Jutney and Another, Civil Appeal No. 23 of 2005 the Court citing a passage in Odgers Construction of Deeds and Statutes (5th ed) at p.106 emphasized that in construing the terms of a written contract;
21.The position in law is that it is strong thing for an appellate court to differ from the findings on a question of fact, as stated in the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:
22.It should be remembered that this court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. The Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:
23.Being a matter relating to a minor, the duty on the court is higher than ordinary civil matter. As I understand Article 53(1) the Constitution of Kenya provides that a child’s welfare and best interest are of paramount importance in every matter concerning the child. The Constitutional imperative is given effect by Section 8 of the Children Act 2022 Act No 29 of 2022 which provides as follows:(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 19 No. 29 of 2022 Children.2.All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.
24.The aforesaid principles are well anchored in the Convention on the Rights of the Child to which Kenya is a party. Under the UN Convention on the Rights of the Child (CRC) that Kenya ratified on 30 July 1990, Article 3 provides that:a.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.b.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
25.The case basically raises two issues. That is:a.The paternity of the minor.b.Loco parentis.
Paternity
26.The pleaded case related to paternity. The Appellant attacked the judgment for failing to evaluate the evidence or to appreciate the law and evaluate the evidence. The court analyzed the evidence on the record as far as possible. The Appellant herself could not give an explanation why the DNA results were negative. There was no evidence of involvement of the Respondent either in the conception, birth or care of the child. The duty that was on the Appellant was brief and succinct. This was to prove that the Respondent was the father of the minor. This she failed to do. The burden of proof was on the Appellant as postulated in sections 107-109 of the Evidence Act. The same provides as follows:
27.The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J, as he was then, in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
28.This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR), where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows:
29.In this case, DNA tests were carried out. The scientific methods of examinations were explained by DW2. The two medical reports were not impeached by any contrary evidence. The expertise of the examining doctors were not put to question. DNA testing thus provided irrefutable evidence that the Respondent does not have biological paternity for the minor. The tests were carried out in the best ethical standards to safeguard the interests of all parties while having the best interest of the child at hand. It serves no purpose to pin a child on a man science has said is not the biological father.
30.The Court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR the Court stated as follows:
31.The evidence placed before the court was an allegation that there was cohabitation from 2012 to 2015 between the parties. No scintilla of evidence was placed. The second one was that a child was born in hospital and a birth certificate with the name of the Respondent issued on 16.7.2017, before the suit was filed barely two months later in 2017. There was nothing else. The further evidence was that the Respondent had denied liability from the beginning.
32.The Appellant confirmed that there is a negative report excluding paternity of the Respondent. Without a conflicting report, the court was bound as it did to dismiss the case. The issue of submissions not having been taken into consideration is not a ground of appeal. Appeals case turn on evidence and not submissions. Submissions are essentially a marketing tool and not pleadings. Mwera J, as he then was, in discussing the role of submissions, stated that they are a course by which counsel or litigants direct the court’s attention to the points of the case that should be given the closest scrutiny in order to firmly establish a claim, as seen in the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993:
33.Submissions are not, strictly speaking, part of the case, and the absence of submissions may not necessarily prejudice a party. Their presence or absence does not, in any way, prejudice the case, as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:
34.The Court of Appeal was more succinct in that submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:
Loco parentis
35.Section 2 of the Children Act 2022 defines a parent to mean the mother or father or any person who is conferred parental rights by law. Ipso facto, a parent cannot arise outside the law. In the case of ZAK and another vs MA and another (2013) eKLR the court had this to say:
36.For the concept of loco parentis to arise there must clearly be three elements.a.The party being placed in loco parentis must, from evidence know that the children are not his.b.The party, in this case, a step father or a grandparent, must assume responsibility in a scenario, where, he has taken unto himself, a duty that he could otherwise not be having.c.The dispute must be pleaded to deal with such and cannot arise out of implication or failure of the pleaded limb of paternity.
37.The foregoing essentially places the burden on the person claiming that another is in loco parentis to plead so and give elements upon which the claim is based. In other words, a party must clearly plead and support their case. If a different case is pleaded, then only that case ought to be proved. In this case, the Appellant pleaded that the minor arose out of escapades between the Appellant and Respondent in their sojourn through cohabitation between 2012 and 2015. The minor is said to have been an issue from the relationship. The Respondent is also pleaded to have eschewed liability from the beginning. The relevant paragraph of the plaint reads as doth: -
38.The minor is said to have been born on 19/7/2015 and the Respondent eschewed responsibility since 2015, all through the informal separation in April 2016 up to and until now. However, in her evidence she changed the story that the Respondent supported the child and paid rent. She then stated that the Respondent no longer provided. The rent is said to have been paid until April 2016. In short, her own evidence does not show that the Respondent accepted responsibility for the child, in any case, it was incumbent upon her to plead as such.
39.The question of loco parentis arose at the appeal level. The first time was in HCCA E050 of 2020. Then in this matter. Pleadings were not amended and evidence led to loco parentis. The Appellant’s evidence was that the Respondent was a biological father. That is what she sought to prove. She never pleaded or tendered evidence that the Appellant accepted responsibility notwithstanding not being a biological father.
40.The primary pleadings and evidence by the Appellant were that the minor was Respondent’s biological child. There was first test which was negative. The Appellant called for a second one which was again negative. At no time did she admit that the child belongs to another man but the Respondent accepted liability. Under Section 23 of the Children Act it is provided thus;1.“in this Act, parental responsibility “means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.2.The duties referred to in Sub -section (1) include in particular-(a)the duty to maintain the child and in particular to provide him with-i.Adequate dietii.Shelteriii.Clothingiv.Medical care including immunizationv.Education and guidance.
41.There was no evidence that the Respondent carried out any of the duties on the minor after knowing that they are not biologically related. The Respondent maintained that the Appellant was a fraudster who prepared the birth certificate from the documents robbed from his house.
42.The DNA report both the initial one and the 2nd DNA report requested for by the Appellant were negative. They excluded the Respondent as the father of the minor. There was no evidence of romantic liaison with the Respondent. The evidence given is of doubtful origin. Why pray, will a husband have to send rent to the wife to pay? Why not pay directly. Why incur expenses sending money for someone else to send instead of sending directly. The so-called agent was of doubtful character. He did not even know which house he was collecting rent. He contradicted the Appellant that it is the Respondent who was paying rent. The evidence of PW1 was that the Respondent sent money for the Appellant to pay rent.
43.The payment of Ksh. 5,000/= from time to time was inconsistent to cruelty and eschewing of responsibility from sometime in 2015. To compound the misery, there is no evidence from the Appellant that the money was sent to the landlord. The Mpesa statements were not produced and it is telling. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice G V Odunga as he was then stated as doth:41.Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:
44.The Appellant pleaded one case and tried to prove another at appellate level. This was not a case in the court below. Such an appeal is frivolous. Once they argued the first appeal, if the Appellant thought that the concept of loco parentis will be useful, she should have leaded the same. Such pleadings are what was referred to in the case of Trust Bank Limited v Amin Company Ltd & Another (2000) KLR 164, where it was held: -
45.Therefore, parties are bound to plead their cases fully. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth: -
46.In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -
47.In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: -
48.Parties must plead their cases fully. The question of loco parentis was not pleaded, nor was it left to the court to determine. In Pacific Frontier Seas Ltd v Kyengo & another [2022] KECA 396 (KLR), the Court of Appeal at Malindi in Civil Appeal No. 32 of 2018 held as follows:
49.The above position had been affirmed in Justice Kalpana H. Rawal v Judicial Service Commission & 3 others [2016] eKLR by the very Court of Appeal in Civil Appeal No. 1 of 2016 at Nairobi. The Court expressed itself thus:
50.Before I depart from the ruling, I note that the Appellant raised issues of certain sections of the law, which are all irrelevant and have no bearing to the case. For example, Section 94 of the Children’s Act relates to privacy of proceedings. Further, Section 114 of the Children’s Act, provides for financial provisions by step-parents and presumptive guardian. The Respondent was not pleaded as a step father or presumptive father. The DNA results have ruled out any presumption. In any case, it was not shown to exist.
51.The Respondent is not a step father or presumptive father, since he is neither married to, nor a presumptive father. It has been irrefutably proved that the Respondent was excluded as a father of the minor herein.
52.On the other hand, Section 22 of Registration of Births and Deaths Act provides as follows:
53.The above section is more applicable to the Appellant in a criminal case than the Respondent.
54.I note that the court did not analyze some of the aspects. In this regard the court took guidance from the Court of Appeal in the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR Kiage JA stated as doth: -
55.In the end, I find that the court below was correct. The appellant misled the Registrar of Deaths and Birth to register the Respondent as the father, when the same was not correct. I am satisfied that the registration was done fraudulently and not supported by evidence. The Appellant has viciously fought the Respondent, in spite of DNA results from two institution’s confirming that the Respondent is excluded as a father. There was no justification in relentlessly seeking to entrap the Respondent. In order to correct an injustice that is patent, it is fair that the Respondent’s name be deleted from the birth certificate No. 70510168 in respect of the minor and from the register, entry No. 0161517066.
56.Award of costs in this court are governed by section 27 of the Civil Procedure Act. They are discretionally. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
57.The Appellant shall bear the Respondent’s costs of the appeal of Ksh. 75,000/=. The same shall be paid within 45 days, failing which execution shall issue.
Determination
58.In the upshot, I make the following orders:a.The Appeal lacks merit and is accordingly dismissed.b.In order to correct an injustice that is patent, it is fair that the Respondent’s name be deleted from the birth certificate No. 70510168 in respect of the minor and from the register, entry No. 0161517066. The registrar of births and deaths, Kisii County is hereby directed to delete the name of the Respondent from the said register, entry No. 0161517066 and birth certificate No. 70510168.c.The Appellant shall bear the Respondent’s costs of the appeal of Kshs. 75,000/=, which shall be paid within 45 days, in default execution do issue.d.The file is closed.
DELIVERED, DATED AND SIGNED AT KISII ON THIS 10TH DAY OF JANUARY, 2025.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:G. M. Nyambati & Co. Advocates for the AppellantS. O. Omwega & Co. Advocates for the RespondentCourt Assistant – Kiptum