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JudgmentLILIAN KEMUMA MAINA VS ROBERT MATWERE BOSIRE37 min read

LILIAN KEMUMA MAINA VS ROBERT MATWERE BOSIRE

High Court at Kisii High Court · · Magare Dennis Kizito Ngwono

  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 16.4.2024. 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. The matter at the Appeal level proceeded by way of submissions which were filed by both parties and highlighted on the hearing date.

Pleadings

  1. The Appellant in her plaint dated 22.9.2017 that she cohabited with the Respondent from 2012 until sometime in 2015, when the Respondent became cruel, abusive, irresponsible and violent. She posited that they informally separated in 2016. It was her case that the marriage was blessed with one issue PGM born on 19.7.2015. She claimed for the Respondent to maintain the minor and provide love and affection.
  2. The Respondent filed his defence on 24.10.2017, where he denied that he ever married or sired a child with the Appellant. He posited that the documents the Appellant had in particular the birth certificate were forged. It was his case that the Appellant was an imposter intent on fleecing him for actions that were never there. It was his case that that PGM was not known to him and he was under no obligation to maintain her. He prayed that the suit be dismissed with costs.

Proceedings

  1. This is a second round of proceeding. The case had been dismissed summarily by the children’s court on 21.12.2022. The Appellant appealed to the high court challenging the dismissal vide Kisii HCCA 50 of 2020. The summary dismissal as a result of the parties carrying out a paternity test, which turned out to be negative; the Respondent was excluded as a father in the deoxyribonucleic acid (DNA)test. This resulted in the Respondent making an oral application that there was nothing to go on trial. The lower court agreed with the Respondent. In reinstating the suit to proceed for full hearing, the High Court (Ougo J in a detailed decision, reported as PGM (Minor suing through her next friend LKM) v RMB [2021] eKLR 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.

  1. In spite of raising the issue of loco parentis at the Appeal level in the former Appeal, the Appellant abandoned the same and reverted to the pleadings as they were.  The matter has had chequered history. The court had ordered for deoxyribonucleic acid test DNA to determine paternity. The first report dated 14.2.2018 ruled out the Respondent.as the father. Appellant sought time to appoint an advocate. The Appellant was not satisfied with the results and sought to have another test carried out. Several orders were made but the Appellant was for one reason or another not available. In some occasions the Respondent was also not there. Parties took their time before DNA test was carried out. The court continued to order for DNA test for over 2 years. Finally, DNA test ordered on 16.1.2020 was carried and a report dated 21.2.2020 filed. The result was equally negative as the Respondent was excluded as a biological parent.
  2. This is when the matter was dismissed and later reinstated as aforesaid. Parties took directions before a different magistrate who took evidence before another took over and concluded. The children’s court found no merit in the matter after full hearing and consequently, dismissed the same on 16.4.2024. The Appellant was aggrieved, filed this Appeal and set forth the following grounds of appeal:
    1. THAT the learned trial magistrate erred in law and fact by failing to appreciate the law and evaluate the evidence place before him before arriving at the decision.
    2. 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.
    3. THAT the learned trial magistrate erred in law and fact by failing to appreciate the law on the principle of loco parentis.
    4. 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.
    5. THAT the judgment of the learned trial magistrate was therefore not well founded in law and hence null and void.
    6. THAT the judgment of the learned trial magistrate was therefore wrong in law and unfounded.

Evidence

  1. PW1, the Appellant, testified that she cohabited with the Respondent from 2012-2015. The liaison resulted in the issue herein, but 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 mobile money sent to her for rent. On cross examination, she stated that she met the Respondent in a cybercafé, where she was working. She continued that eventually they cohabited between 2012 and sometime in 2015. It was her case that her landlady was one Sabina for the period May 2012 April to 2016. She admitted that both DNA results showed that the Respondent was not the father.
  2. PW2, Kerubo was a clan elder. She testified that on 23.3.2017, the Respondent sent her 5,300/= for rent for the Appellant and was to pay every month. She did not say whether the continue payment of rent was done. According to her, this was at the time the matter was at the chief’s office for alterative justice resolution. 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.
  3. PW2 Alloys Ochogo testified that he was a property manager, and knew the Appellant. According to him, he had known the Appellant for 8 months starting from December 2016, when he took over the management of the house where the Appellant was staying. The company which was managing the house issued receipts for rent paid by the Respondent. It was his case that the Appellant was also their tenant. He stated that the landlady was one Scholastica.
  4. PW3 produced a birth certificate for the minor. The birth certificate indicated the Appellant and Respondent and mother and father respectively. It was registered in August 2015 and issued on 16.7.2017. On cross examination, he stated that he did not know who the Applicant for the certificate. The certidicate indicated that 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 ones from Kisii Teaching and Referral Hospital. The Appellant closed her case without producing Mpesa statements which had been marked for identification.
  5. DW1, The Respondent testified that he had no relationship with the Appellant. It was his evidence that he never lived with the Respondent since from 2012 to 2015. He maintained that he was staying at Maili Mbili from 2012 2020. He stated that his landlady during the entire period was one Elizabeth. He stated that he recalled that his documents were stolen on 21.4.2016 and reported to Kisii police station. He denied paternity of the minor. In support of this postulation, he relied on the two DNA reports filed in court.
  6. It was DW1’s evidence that he stated that he never dealt with PW3. For him, al the documents relied on by PW3 were forgeries. His knowledge of the Appellant was that while he was studying for PHD, her met her at West Net Technology where she worked. He could photocopy several documents and send Mpesa to the attendant to pay for the photocopies. Sometimes he could pay cash. It was his evidence that he never extended photocopying beyond the papers.
  7. He denied that the money paid was for maintenance of the minor. His evidence was that he only paid for services at West Net technologies between 2012-2015. According to him, he never got photocopying services beyond 2015. He denied that he paid any money to the Appellant in 2017. He stated that in 2017, 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. He denied that he had parental responsibility.
  8. DW2, Dr. Charles Maina testified that he was a pathologist. He produced the DNA that was filed from Lancet according to him, the DNA test excluded the Respondent as a biological father of the minor. He gave out his detailed qualification and registration particulars. He supported the authenticity of the DNA results from a scientific view point.
  9. DW3 was the Respondent’s landlady Elizabeth. She stated that the Appellant was her tenant from 2012 -2020. She stated that the Respondent moved out to his own residence. She also knew the Respondent’s wife, AB. She was cross examined on other aspects other than residence.
  10. DW4, Kipngetich Bernard a government analyst. He produced the government chemist’s DNA report. The report excluded the Respondent as the biological father of the minor. He was cross examined on the differences with the Lancet report and stated that he was not aware of the second report.  He stated that the report was scientifically sound. Lastly, DW5 Jared Mekenye testified that DW1 used to frequent West Net Technologies. He stated that he never handled their account.
  11. The court analyzed submissions and evidence tendered. In the end the court decided the case on 16.4.2024, where he 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

  1. 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 where the Court stated:

“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

  1. The duty of the first appellate Court was set out in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held as follows; -

“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

  1. This Court as the first Appellate court has to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that had 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;-

“Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it.

  1. It is settled that 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, 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;

“It is a familiar rule of law that no parole evidence is admissible to contradict, vary or alter the terms of the deed or any written instrument. The rule applies as well to deeds as to contracts in writing. Although the rule is expressed to relate to parole evidence, it does in fact apply to all forms of extrinsic evidence.”

  1. The position in law is that it is a strong thing for an appellate court to differ from the findings of the trial court on a question of fact, as stated in the case of Peters vs Sunday Post Limited [1958] EA 424:

“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

  1. I note that the court did not analyses 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: -

“I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the Court of Appeal Rules 2010; Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual findings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge.”

  1. It should be remembered that this court cannot properly substitute the findings of the trial court unless there is no evidence to support the finding or unless the magistrate can be said to be plainly wrong. The Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:

“An appeal 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. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

  1. Being a matter relating to a minor, the duty on the court is higher than ordinary civil matter. Article 53 (1) of 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.

  1. The aforesaid principles are well anchored in the Convention on the Rights of the child, to which Kenya is a party. Article 3 of the the UN Convention on the Rights of the Child (CRC) that Kenya ratified on 30 July 1990, provides as follows: -
  2. 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.
  3. 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.
  4. The case basically raises two issues, that is:
    1. The paternity of the minor
    2. Loco parentis.
  5. Paternity of the minor
  6. The pleaded case related to paternity of the minor born on 15.7.2015. The Appellant impugned the judgment for failing to evaluate the evidence or to appreciate the law. 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 Appellant either in the conception, birth or care of the child.
  7. The duty that was on the Appellant was circumscribed, that is to prove that the Respondent was the father of the minor. The burden of proof, on the Appellant is on a balance of probabilities. The said burden is as postulated in sections 107 -109 of the Evidence Act, which state as follows:

“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent 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 on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either 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 the proof of that fact shall lie on any particular person.”

  1. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J, as then he was, in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:

 “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

  1. 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:

The burden of proof is placed upon the Appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -

“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

  1. In this case, DNA tests were carried out by two reputable institutions. The scientific methods of carrying out the test was testified upon by DW2. The two DNA medical reports were not impeached by any contrary evidence. The expertise of the examining doctors was 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 minor at hand. It serves no purpose to pin a child on a man, that science has said is not the biological father.
  2. The burden of proof does not change, even where no defence evidence is tendered. The court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR where the Court stated as follows:

“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”

  1. The evidence placed before the court was that an allegation that there was cohabitation from 2012 to 2015 between the parties. No scintilla of evidence was tendered on this, what comes out is that child was born in hospital and a birth certificate with the name of the Respondent issued on 16.7.2017, barely two months before the suit was filed in 2017. There was nothing else tendered to point out the Respondent as the father. The further evidence was that the Respondent had denied paternity from the beginning. He had never assumed parental responsibility. Indeed, this aspect is already set out in the Plaint. 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.
  2. The Appellant lamented that the lower court failed to consider her submissions. The issue of submissions not having been taken into consideration is not a ground of Appeal. Appeals and case turn on evidence and not submissions. Submissions are essentially marketing tools and not pleadings. Mwera J, as he then was, in discussing the role of submissions, stated that they are a course by which advocates 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:

“Indeed, and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”

  1. It is my finding that an appeal relating to non-consideration of submissions are not, strictly speaking, part of the case. In that connection, 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:

“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallize the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”

  1. 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 [supra].

“Submissions cannot take the place of evidence.  The 1st Respondent had failed to prove his claim by evidence.  What appeared in submissions could not come to his aid.  Such a course only militates against the law and we are unable to countenance it.  Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one.  Submissions, we reiterate, do not constitute evidence at all.  Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”

(b) Proof of Loco parentis.

  1. The Appellants raised the question of loco parentis at appeal stage. This was earlier addressed in the former Appeal but is not part of the pleadings.
  2. The question of loco parentis is dealt with from the definition part in Section 2 of the Children Act 2022. The Section 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:

“looked at from the above perspective, should there be sufficient evidence to show that the 1st petitioner was in loco parentis to the two other children of the 1st Respondent, he would have an obligation to support them in the same way as he is under obligation to support his biological children

  1.   In short, for the concept of loco parentis to arise there must clearly be three elements:
    1. The party being placed in loco parentis must, from evidence know that the child is not his.
    2. 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.
    3. The dispute must be pleaded to deal with such and cannot arise out of implication or failure of the prove an aspect of paternity.
  2. 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: -

“5.  That all was well in the marriage until sometime 2015(sic) when the defendant suddenly changed and became very cruel, violent, irresponsible and abusive leading to their informal separation in April 2016.  The particulars of cruelty and negligence were set out in the plaint as follows:

Particulars of cruelty and negligence

  1. Failing to provide maintenance and upkeep for the minor child
  2. Denying the issue of the relationship fatherly love and attention.
  3. Displaying an uncaring attitude towards his child and keeping away from her.
  4. Acting in total disregard to the best interest and welfare of the said child.
  5. Putting the child in a state that she needs protection and care by the law.

6. That since then the Defendant has continued with his acts of cruelty and negligence and the following are some incidents thereof.

  1. The minor was born on 19/7/2015. There is an attempt to state that she was cared for by the Respondent. The Appellant did not prove that care for the minor. She pleaded that the Respondent eschewed responsibility some time in 2015, all through the informal separation in April 2016 up to and until now.  This is not evidence of taking up parental responsibility.
  2. Nevertheless, the question of loco parentis is moot since the Appellant changed postulating that the Respondent supported the child and paid rent. No evidence was given. The issuance of receipts in the name of the Respondent does not make him a tenant. The Appellant and her witness were dealing with a house belonging to Scholastica and another by Sabina. I find the evidence that the Respondent was stating in Maili Mbili credible. The landlady, eldiabeth ‘s evidence was not impeached.  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.
  3. The question of loco parentis arose at the Appeal level. The first time was in HCCA E050 OF 2020. Then in this Appeal, and the pleadings were not amended or evidence led on loco parentis. The Appellant’s pleadings and evidence attempted was that the Respondent was a biological father. That is what she sought to prove. She never pleaded or tendered evidence that the Respondent accepted responsibility notwithstanding not being a biological father.
  4. The primary pleadings and evidence by the Appellant were that the Respondent was a biological father. It should be recalled that the first test which was negative, that is excluded the Respondent as a father. Instead of pleading loco parentis, the Appellant applied for a second one as she did not belief that the test was correct. This report also turned out negative. At this point, while aware of the negative tests, the Appellant did not find it useful to plead loco parentis. This was also not left to the court to determine. At no time did Respondent admit that the child belongs to another man but the Respondent accepted liability.
  5. To be able to assume parental responsibility, it must be that you have no responsibility before assuming. It is akin to assuming office. A persons cannot assume office he is occupying. Guidance on parental responsibility is given in Section 23 of the Children Act:

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-

    1. Adequate diet  
    2. Shelter
    3. Clothing
    4. Medical care including immunization  
    5. Education and guidance.
  1. 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. This was the linchpin her case and nothing else.
  2. The DNA report both the initial one and the second one 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 regarding rent is of doubtful origin and of no probative value. The period for which PW3 was collecting rent is after the period pleaded that the Respondent had eschewed responsibility.
  3. There was no explanation that rent had to be paid, for example though a village elder or the Appellant. There was no single receipt accompanying any money sent to the Applicant. The incidents are too scant to point out to cohabitation or acceptance of liability. There does not appear to evidence of payment of any utilities for the minor.
  4. PW3, the so-called agent for collecting rent came into the picture in December, 2016, after event. His evidence was dubious as he did not even know the landlord but had another version of a landlord. 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 Respondent to pay rent.  The Appellant’s evidence and pleadings was that the Respondent eschewed liability and went missing on action in April 2016.
  5. 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 then he was 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:

“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:

‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’

Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make the adverse inference that if such evidence was produced, it would be adverse to such a party.   In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”

  1. 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 Respondent thought that the concept of loco parentis will be useful, she should have pleaded the same.  Such pleadings are what was referred to in the case of In Trust Bank Limited v Amin Company Ltd & Another (2000) KLR 164, it was held: -

“A pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble or expense. A pleading which tends to embarrass or delay fair trial is a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses which will prejudice the fair trial of the action”

  1. 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:

“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -

“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……

…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

  1. Further, 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:

As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….

In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

  1. 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: -

“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

  1. 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:

As regards unpleaded issues, the principle is well settled that a court, even when it has jurisdiction, will not base its decision on unpleaded issues because the issues determined by the court must flow from pleadings. It is the pleadings which guide the litigation and succinctly inform the parties and the court what is in dispute. However, where the parties lead evidence and address the unpleaded issues and from the cause adopted at trial it appears that the unpleaded issues have been left for the decision of the court, the court will validly determine the unpleaded issues. (See Captain Harry Gandy v. Caspar Air Charters Ltd [1956] 23 EACA 139; Odd Jobs v. Mubea [1970] EA 476, D.E.N. v. P.N.N. (supra), Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001; and Mapis Investment (K) Ltd v. Kenya Railways Corporation (2005) 2 KLR 410). Nevertheless, we should add that parties cannot validly leave unpleaded issues over which the court has no jurisdiction for it to decide, simply because parties cannot by consent, confer jurisdiction to a court which in law it does not have.

  1. The above position had been postulated 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:

“The principles of law on unpleaded issues, as stated by the Appellant, are correct and not in dispute. A court will not determine or base its decision on unpleaded issues. Where however, evidence is led and it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court can validly determine the unpleaded issue. Accordingly, we need not belabour or restate the principles here in detail, save to mention but some decisions, which have crystallized those principles. These include Captain Harry Gandy v. Caspar Air Charters Ltd [1956] 23 EACA 139; Odd Jobs v. Mubea [1970] 476, D.E.N. v. P.N.N. (supra), Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001; and Mapis Investment (K) Ltd v. Kenya Railways Corporation (2005) 2 KLR 410.”

  1. Before, I depart from the ruling, I note that the Appellant raised issued 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.
  2. 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.  Secondly, 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.
  3. On the other hand, Section 22 of Registration of Births and Deaths Act is more applicable to the Appellant in a criminal case than the Respondent. The same stated as follows:

Any person who fails to give notice of a birth or death the registration of which is compulsory, or who refuses to furnish any of the prescribed particulars, or who contravenes section 21 of this Act, and any person who willfully gives any false information or particulars for the purpose of registration, shall be guilty of an offence and be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment.  It is irrelevant.

  1. In the end, I find that the court below was correct. In a nutshell the Appeal is frivolous and is accordingly dismissed.
  2. Further, 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 reputable 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 apparent, it is fair that the Respondent’s name be deleted as a father from the birth no. 7051068 in respect of the minor and from the register, entry no. 0161517066.
  3. 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: -

“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– those costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.

  1. The Appellant shall bear the Respondent’s costs of the Appeal of Ksh 75,000/= will suffice. The same shall be paid within 45 days, failing which execution shall issue.

Determination

  1. In the upshot, I make the following Orders:
  2. The Appeal lacks merit and is accordingly dismissed.
  3. In order to correct an injustice that is patent, it is fair that the Respondent’s name be deleted from the birth certificate no. 7051068, in respect of the minor and from the register, entry no. 0161517066. The registrar of births and death, Kisii county is hereby directed to delete the name of the Respondent from the said register, entry no. 0161517066 and birth certificate no. 7051068.
  4. The Appellant shall bear the Respondent’s costs of the Appeal of Ksh 75,000/=, which shall be paid within 45 days, in default execution do issue.
  5. The file is closed.

DELIVERED, DATED and SIGNED at KISII on this 10th day of January, 2025.

Judgment delivered through Microsoft Teams Online Platform.

In the presence of:

G.M. Nyambati for the Appellant

S.O. Omwenga for the Respondent

Court Assistant –  Kiptum

    LILIAN KEMUMA MAINA VS ROBERT MATWERE BOSIRE LILIAN KEMUMA MAINA VS ROBERT MATWERE BOSIRE