'1. The appellant herein moved the court below through a plaint dated 12th October 2022 seeking a declaration that the both the plaintiff and the defendant have equal parental responsibility for the issue herein namely ROO as well as an an order giving that effect, for the actual/physical custody, care and control of the child to vest in her, for an order requiring the defendant to contribute Kes.72,300/- per month for the maintenance in respect of the issue herein and for the said sum to be remitted into her account on/or before the 5th day of every month. She further sought for orders that the defendant do pay the child’s school fees and the school related expenses as required from time to time by the child’s school when he attains the school age, for the defendant to take a comprehensive medical cover for the child herein in a reputable medical insurance company and furnish the plaintiff with the relevant documents, an order requiring the defendant to make adequate contribution towards additional educational expenses, as and when the same arise and costs of the suit and interests therein at court rates. In addition, she prayed for other relief that the court may deem fit to grant.
2. The appellant filed a Notice of Motion dated 7th December 2023. On 29th January 2024, the said application was withdrawn. The appellant opted to prosecute an application dated 15th January 2024 vide which she sought to have the matter heard de novo, for review and setting aside of the orders issued dismissing the suit and for an independent fresh examination of the DNA of the parties to determine the paternity of the minor child herein and if the same turns positive the court to compel the respondent to pay in arrears all the maintenance costs accrued.
3. The court, in its ruling of 29th February 2024, dismissed the application with no costs on the grounds that it lacked merit.
4. Being dissatisfied with the said decision, the appellant appealed to this court seeking to have the whole ruling of the trial court set aside, and the court to allow the prayers for review, costs, and any other orders in the interest of justice.
5. The appeal is on the following grounds:-
a) That the learned honourable magistrate erred in law and in fact by failing to review and set aside the judgment entered dismissing the plaintiff’s case without considering in detail the reasons and evidence put forth by the appellant;
b) That the learned honourable magistrate erred in law by entering a judgment for the respondent against the appellant as prayed in the suit based on an erroneous finding on paternity as opposed to merit;
c) That the learned honourable magistrate erred in law and in fact by dismissing fresh examinations or DNA of the parties, when there was no other evidence to the contrary.
d) That the learned honourable magistrate erred in law and in fact by not considering the evidence of the appellant and failing to review the orders issued dismissing the suit;
e) That the learned honourable magistrate erred in law and fact in making the findings, which were a total misdirection and legal deviations from the express provisions of the law;
f) That the learned honourable magistrate erred in law and fact, as the judgment is not based on the evidence of the party;
g) That the learned magistrate erred in law and in fact by failing to consider the best interests of the child in making his determination;
h) That the learned magistrate erred in law and in fact by making a ruling that is inconsistent with the guiding provisions of law and or principles in safeguarding and promoting the rights and welfare of the child; and
i) That failing to consider pertinent arguments and facts raised by the appellant, giving proof of the respondent’s possible paternity of the child and likelihood of manipulation of the DNA tests by the respondent, hence forever condemning and closing the child’s only chance of establishing the fact that the respondent is indeed his biological father, hence arriving at an erroneous finding.
6. The appeal was canvassed by way of written submissions. I will outline the parties'' submissions briefly below.
7. The appellant, through her advocates, Wanjiku A. Njuguna Advocates, filed written submissions dated 1st September 2025. Counsel submitted on three issues, namely, whether the trial court erred in law and in fact by failing to order DNA testing despite contested paternity, whether the trial court failed to consider the best interest of the child as a paramount consideration, and whether the appellant is entitled to the reliefs sought in the lower Court.
8. Regarding the DNA testing and the right to identity counsel relied on Section 100 of the Children’s Act 2022 and submitted that the trial court erred by refusing to entertain a fresh DNA request, despite the conflicting positions and the lack of credible proof of paternity by the respondent. She submitted that the failure to order DNA testing denied the minor an opportunity to ascertain his biological father, violating his rights under Article 53(1)(a) and (e) of the Constitution.
9. On the best interest of the child, counsel relied on Article 53(2) of the Constitution and Section 8 of the Children’s Act and submitted that the trial court failed to demonstrate how its ruling served the child’s best interest. She urged that the refusal to allow DNA testing may lead to future psychological, emotional, and legal harm to the child.
10. On the right to fair hearing, counsel relied on article 50 of the Constitution and submitted that the child’s rights were violated when the court dismissed this matter without adequately considering the appellant’s testimony and submissions, and without engaging independent scientific evidence.
11. The respondent, through his advocates, Ambwere T.S. & Associates Advocates, filed his written submissions dated 4th June 2025.
12. In conclusion, counsel urged the court to allow the appeal as prayed.
13. On the grounds 1, 3, 5, and 8 of the Memorandum of Appeal, counsel submitted that there is no new evidence tendered to enable the court to review its ruling. There was no evidence that the DNA test was interfered with. The application for review was filed a year later, which constitutes an abuse of the court process; therefore, the said grounds must fail.
14. On grounds 2, 6, and 7 thereof, counsel submitted that the matter was dismissed after the court was supplied with DNA results and therefore the judgment of the court cannot be faulted.
15. On grounds 4 and 9, counsel submitted that there was no evidence tendered by the appellant and therefore these grounds must fail.
16. In conclusion, counsel urged the court to find that the appeal lacks merit and dismiss the same with costs.
17. In this matter, two issues emerge for determination, namely: whether there were grounds for review of the court decision to dismiss the suit before the court below, and whether the subordinate court considered the best interest of the child in its decision.
18. The appellant sought review and setting aside the orders issued dismissing the suit, and for an independent fresh examination of the DNA of the parties to determine the paternity of the minor child. She did so as the Court below dismissed the suit once the DNA results that the Court had ordered showed that the respondent wasn’t the father of the child.
19. The grounds for review are provided for by Order 45 rule 1(1) and (2) of the Civil Procedure Rules 2010, which provides:-
a. Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
b. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
20. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR) stated as follows:-
“Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules give the court unfettered discretion to make such an order as it thinks fit on sufficient reason being given for review of its decision. However, as it has been constantly stated, this discretion should be exercised judiciously and not capriciously.”
21. In the case of Smartkar Enterprises & another v Mary Kemunto Ogendo [2021] KEHC 7801 (KLR), it was stated:-
“It is now settled that for courts to review their decision they must do so in compliance with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Mativo J in Nasibwa Wakenya Moses v University of Nairobi & Another [2019] eKLR observed that;
“Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. Put differently, the rules lay down the jurisdiction and scope of review. They limit it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without an unreasonable delay.
…..
A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.”
22. In the case of Rose Kaiza v Angelo Mpanjuiza [2009] eKLR, the Court of Appeal quoted the commentary by Mulla of the Indian Civil Procedure Code, 15th Edition at page 2726, on the ground of discovery of new and important evidence, stating that:-
“Applications on this ground must be treated with great caution and, as required by r 4(2) (b), the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
23. The application was brought on the grounds that DNA results were manipulated in favour of the respondent, and the same could only be verified by ordering another test afresh and independently.
24. I note that the DNA results provided to the Court on 18th January 2023 excluded the respondent as the father of the child. As a result, the appellant filed the application dated 15th January 2024, which is the subject of this appeal.
25. On the issue of DNA, the trial court, in its ruling paragraph 9, stated that:-
“A quick perusal of the affidavit in support of the application, there is no evidentiary attachment to suggest that the DNA results obtained were wrong.”
26. On review, the court stated that:-
“An order for review issues when there is an error on the face of the record or when there is new information that was not available to the applicant…has this application met this strict test, I believe not.”
27. The appellant also sought reinstatement of the matter. In paragraph 13 on reinstatement, the court stated:-
“that the standard of proof is on a balance of probability. Is the evidence before the court to this standard? I believe not. An order for reinstatement can thus not issue.”
28. The appellant bore the burden of proving that the DNA results earlier supplied to the Court were tampered with. No such evidence was provided. Without such evidence, the Court below was right not to review its earlier orders, as there were no compelling reasons to do so.
29. I must also state that review jurisdiction is discretionary in nature. The circumstances under which the appellate court may interfere with the exercise of discretion by an inferior court are pretty well settled. In CMC Holdings Limited v Nzioki [2004] 1 KLR 173, the Court of Appeal stated as follows:-
“We are fully aware that in an application before a court to set aside an ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law, and there are many decided cases in support of the proposition. One such authority is that of Magunga General Stores vs Pepco Distributors [1987] 2 KAR 89 to which we were referred and in which this Court stated as follows: “The Court on an appeal will not interfere with the exercise of a discretion on an application for summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts.”
30. I am not able to agree with the appellant that there is a ground for review of the decision of the Court below. The moment the Court established that the respondent wasn’t the father of the child, the case against the respondent was lost, as it depended on the assumption that he was the biological father.
31. Since it had been established that the respondent wasn’t the father of the child, the best interest principle couldn’t be used to saddle him with obligations that were not his to bear. The duty to provide for the child remains with the child’s parents and the state, not with a person who has been adjudged not to be a parent by an objective, scientific process.
32. I have perused the record of appeal. It is evident that no evidence was tendered to compel the court to grant the orders sought. Furthermore, the appellant did not raise any grounds or submit any evidence in support of the review; therefore, the application did not meet the threshold for review.
33. The upshot of the foregoing is that the appeal lacks merit. The same is for dismissal. The same is, thus, dismissed with no order for costs.
34. It is so ordered.
Dated and signed at Mombasa, this 25th day of September 2025. Judgment posted in the CTS portal.
'
2. The appellant filed a Notice of Motion dated 7th December 2023. On 29th January 2024, the said application was withdrawn. The appellant opted to prosecute an application dated 15th January 2024 vide which she sought to have the matter heard de novo, for review and setting aside of the orders issued dismissing the suit and for an independent fresh examination of the DNA of the parties to determine the paternity of the minor child herein and if the same turns positive the court to compel the respondent to pay in arrears all the maintenance costs accrued.
3. The court, in its ruling of 29th February 2024, dismissed the application with no costs on the grounds that it lacked merit.
4. Being dissatisfied with the said decision, the appellant appealed to this court seeking to have the whole ruling of the trial court set aside, and the court to allow the prayers for review, costs, and any other orders in the interest of justice.
5. The appeal is on the following grounds:-
a) That the learned honourable magistrate erred in law and in fact by failing to review and set aside the judgment entered dismissing the plaintiff’s case without considering in detail the reasons and evidence put forth by the appellant;
b) That the learned honourable magistrate erred in law by entering a judgment for the respondent against the appellant as prayed in the suit based on an erroneous finding on paternity as opposed to merit;
c) That the learned honourable magistrate erred in law and in fact by dismissing fresh examinations or DNA of the parties, when there was no other evidence to the contrary.
d) That the learned honourable magistrate erred in law and in fact by not considering the evidence of the appellant and failing to review the orders issued dismissing the suit;
e) That the learned honourable magistrate erred in law and fact in making the findings, which were a total misdirection and legal deviations from the express provisions of the law;
f) That the learned honourable magistrate erred in law and fact, as the judgment is not based on the evidence of the party;
g) That the learned magistrate erred in law and in fact by failing to consider the best interests of the child in making his determination;
h) That the learned magistrate erred in law and in fact by making a ruling that is inconsistent with the guiding provisions of law and or principles in safeguarding and promoting the rights and welfare of the child; and
i) That failing to consider pertinent arguments and facts raised by the appellant, giving proof of the respondent’s possible paternity of the child and likelihood of manipulation of the DNA tests by the respondent, hence forever condemning and closing the child’s only chance of establishing the fact that the respondent is indeed his biological father, hence arriving at an erroneous finding.
6. The appeal was canvassed by way of written submissions. I will outline the parties'' submissions briefly below.
7. The appellant, through her advocates, Wanjiku A. Njuguna Advocates, filed written submissions dated 1st September 2025. Counsel submitted on three issues, namely, whether the trial court erred in law and in fact by failing to order DNA testing despite contested paternity, whether the trial court failed to consider the best interest of the child as a paramount consideration, and whether the appellant is entitled to the reliefs sought in the lower Court.
8. Regarding the DNA testing and the right to identity counsel relied on Section 100 of the Children’s Act 2022 and submitted that the trial court erred by refusing to entertain a fresh DNA request, despite the conflicting positions and the lack of credible proof of paternity by the respondent. She submitted that the failure to order DNA testing denied the minor an opportunity to ascertain his biological father, violating his rights under Article 53(1)(a) and (e) of the Constitution.
9. On the best interest of the child, counsel relied on Article 53(2) of the Constitution and Section 8 of the Children’s Act and submitted that the trial court failed to demonstrate how its ruling served the child’s best interest. She urged that the refusal to allow DNA testing may lead to future psychological, emotional, and legal harm to the child.
10. On the right to fair hearing, counsel relied on article 50 of the Constitution and submitted that the child’s rights were violated when the court dismissed this matter without adequately considering the appellant’s testimony and submissions, and without engaging independent scientific evidence.
11. The respondent, through his advocates, Ambwere T.S. & Associates Advocates, filed his written submissions dated 4th June 2025.
12. In conclusion, counsel urged the court to allow the appeal as prayed.
13. On the grounds 1, 3, 5, and 8 of the Memorandum of Appeal, counsel submitted that there is no new evidence tendered to enable the court to review its ruling. There was no evidence that the DNA test was interfered with. The application for review was filed a year later, which constitutes an abuse of the court process; therefore, the said grounds must fail.
14. On grounds 2, 6, and 7 thereof, counsel submitted that the matter was dismissed after the court was supplied with DNA results and therefore the judgment of the court cannot be faulted.
15. On grounds 4 and 9, counsel submitted that there was no evidence tendered by the appellant and therefore these grounds must fail.
16. In conclusion, counsel urged the court to find that the appeal lacks merit and dismiss the same with costs.
17. In this matter, two issues emerge for determination, namely: whether there were grounds for review of the court decision to dismiss the suit before the court below, and whether the subordinate court considered the best interest of the child in its decision.
18. The appellant sought review and setting aside the orders issued dismissing the suit, and for an independent fresh examination of the DNA of the parties to determine the paternity of the minor child. She did so as the Court below dismissed the suit once the DNA results that the Court had ordered showed that the respondent wasn’t the father of the child.
19. The grounds for review are provided for by Order 45 rule 1(1) and (2) of the Civil Procedure Rules 2010, which provides:-
a. Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
b. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
20. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR) stated as follows:-
“Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules give the court unfettered discretion to make such an order as it thinks fit on sufficient reason being given for review of its decision. However, as it has been constantly stated, this discretion should be exercised judiciously and not capriciously.”
21. In the case of Smartkar Enterprises & another v Mary Kemunto Ogendo [2021] KEHC 7801 (KLR), it was stated:-
“It is now settled that for courts to review their decision they must do so in compliance with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Mativo J in Nasibwa Wakenya Moses v University of Nairobi & Another [2019] eKLR observed that;
“Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. Put differently, the rules lay down the jurisdiction and scope of review. They limit it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without an unreasonable delay.
…..
A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.”
22. In the case of Rose Kaiza v Angelo Mpanjuiza [2009] eKLR, the Court of Appeal quoted the commentary by Mulla of the Indian Civil Procedure Code, 15th Edition at page 2726, on the ground of discovery of new and important evidence, stating that:-
“Applications on this ground must be treated with great caution and, as required by r 4(2) (b), the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
23. The application was brought on the grounds that DNA results were manipulated in favour of the respondent, and the same could only be verified by ordering another test afresh and independently.
24. I note that the DNA results provided to the Court on 18th January 2023 excluded the respondent as the father of the child. As a result, the appellant filed the application dated 15th January 2024, which is the subject of this appeal.
25. On the issue of DNA, the trial court, in its ruling paragraph 9, stated that:-
“A quick perusal of the affidavit in support of the application, there is no evidentiary attachment to suggest that the DNA results obtained were wrong.”
26. On review, the court stated that:-
“An order for review issues when there is an error on the face of the record or when there is new information that was not available to the applicant…has this application met this strict test, I believe not.”
27. The appellant also sought reinstatement of the matter. In paragraph 13 on reinstatement, the court stated:-
“that the standard of proof is on a balance of probability. Is the evidence before the court to this standard? I believe not. An order for reinstatement can thus not issue.”
28. The appellant bore the burden of proving that the DNA results earlier supplied to the Court were tampered with. No such evidence was provided. Without such evidence, the Court below was right not to review its earlier orders, as there were no compelling reasons to do so.
29. I must also state that review jurisdiction is discretionary in nature. The circumstances under which the appellate court may interfere with the exercise of discretion by an inferior court are pretty well settled. In CMC Holdings Limited v Nzioki [2004] 1 KLR 173, the Court of Appeal stated as follows:-
“We are fully aware that in an application before a court to set aside an ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law, and there are many decided cases in support of the proposition. One such authority is that of Magunga General Stores vs Pepco Distributors [1987] 2 KAR 89 to which we were referred and in which this Court stated as follows: “The Court on an appeal will not interfere with the exercise of a discretion on an application for summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts.”
30. I am not able to agree with the appellant that there is a ground for review of the decision of the Court below. The moment the Court established that the respondent wasn’t the father of the child, the case against the respondent was lost, as it depended on the assumption that he was the biological father.
31. Since it had been established that the respondent wasn’t the father of the child, the best interest principle couldn’t be used to saddle him with obligations that were not his to bear. The duty to provide for the child remains with the child’s parents and the state, not with a person who has been adjudged not to be a parent by an objective, scientific process.
32. I have perused the record of appeal. It is evident that no evidence was tendered to compel the court to grant the orders sought. Furthermore, the appellant did not raise any grounds or submit any evidence in support of the review; therefore, the application did not meet the threshold for review.
33. The upshot of the foregoing is that the appeal lacks merit. The same is for dismissal. The same is, thus, dismissed with no order for costs.
34. It is so ordered.
Dated and signed at Mombasa, this 25th day of September 2025. Judgment posted in the CTS portal.
'