1. The appeal that informs this judgment is predicated the Memorandum Of Appeal dated 11.7.26 wherein the Appellant is challenging the ruling of 12th June 2024 raising the following grounds:
a) THAT the learned magistrate erred in law and in fact in dismissing the Appellant's application dated 29th April 2024.
b) THAT the learned magistrate erred in law and in fact in finding that the Appellant had to file a substantive suit to anchor his application for DNA orders and subsequently dismissing the Application.
c) THAT the learned magistrate erred in law and in fact in dismissing the Appellant's Application on the basis of the pendency of an Environment and Land Matter in Murang'a MISC. NO. E100 OF 2022.
d) THAT the learned magistrate erred in law and in fact in taking into account the proceedings in Murang'a MISC. NO. E011 OF 2022 in making its determination; whilst the issues in Murang'a MISC. NO. EO11 OF 2022 are land related and not those of paternity.
e) THAT the learned magistrate erred in law and in fact in failing to consider the Appellant's further affidavit filed in court on 10th June 2024 as well as the Authorities relied on by the Appellant's counsel in their oral submissions to court.
f) THAT the learned magistrate erred in law and in fact in finding that the Appellant had not met the threshold required for an order for DNA to issue.
g) THAT the learned magistrate erred in law and in fact in delving into issues of the privacy of the 2nd Respondent while the same had not been raised by the 2nd Respondent in his pleadings.
h) THAT the learned magistrate erred in law and fact in finding that the Appellant had not demonstrated the grave importance of the orders sought despite the fact that the Appellant produced evidence that he was likely to become homeless and destitute at the behest of a stranger to his estate.
i) THAT the learned magistrate erred in law and in fact in failing to grant the orders for DNA test to be conducted to ascertain the issue of paternity between the Appellant and the 2nd Respondent with finality despite the presence of multiple birth certificate on court's record each indicating conflicting details therein.
2. The Appellant is seeking the following orders:
a. THAT the Appeal is allowed in its entirety.
b. THAT the ruling delivered on the 12th June 2024 by the Chief Magistrate Court at Murang'a in Murang'a MISC. CIVIL APPLICATION E023 OF 2024 be set aside.
c. THAT the Honourable Court be pleased to order the 2nd Respondent herein to submit to a DNA test at the Government Chemist, Kenyatta National Hospital on a day to be set by the Honourable Court.
d. THAT the costs of this Appeal be awarded to the Appellants.
3. The Appellant’s Case:
4. He submits that an application for DNA test can be made by way of a stand alone by way of a Miscellaneous Application particularly where the issue of paternity is central and urgent.
5. Reliance is made in the case of FKW (suing as the mother and next friend of GDW (Minor) v DMM [2015] eKLR where the Court allowed a miscellaneous application for DNA test against the Respondent.
6. He also relies on the case of LNJ v GKM [2019] KEHC 1030 (KLR) where the applicant moved the Court vide a Miscellaneous Application seeking the Respondent to be subjected to a DNA test.The Court allowed the Application.
7. The applicant believes that the trial Court relied heavily on the issue of proprietorship that was a central issue Murang’a Misc. No. E011 of 2022 which was a none issue given that what was before the court was the determination of paternity.
8. He strongly believes that this influenced the mind of the trial Court thus causing a miscarriage of justice.
9. He places reliance in the case of KMN v EG (Family Appeal E003 of 2021) [2022] KEHC 11302 (KLR) where the Court at paragraph 31 opined thus,
“From the wording of the two provisions, the court has wide discretionary powers to vary any order/orders made if the interest of justice demands. It is trite that unless found that the trial court applied a wrong legal principle or took into consideration irrelevant or extraneous matter in arriving at its conclusion or finding, an appellate court should exercise restraint not to interfere. See Mbogo and another V Shah(1968) EAP where the court stated that; “An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been an injustice”
10. In ERK v JCC (Civil Appeal No. 8 of 2018) [2020] eKLR, the Court at paragraph 9 held that, “The 2ndground of appeal is that the magistrate wrongly based her decision on extraneous issues. In the submissions the counsel for the appellant has not pointed at any extraneous issue that the magistrate brought into the judgment which was not part of the pleadings and submissions. I dismiss this ground as it is baseless.” We submit that we have established and/or established the basis of the error made by the Trial Court.He also relies on the case of Patrick Sosio Lekakeny v Tomito Alex Tampushi & 3 others [2018] eKLR to fortify the point.
11. On to another point he submits that parties are bound by their pleadings thus .A Court of law is limited to the specific issues raised by parties to a suit like the issues of breach of the Respondent’s privacy which issue was not pleaded and/or raised by the Respondents. He is dissatisfied that this notwithstanding, the court considered it.
12. In Palms Resort Limited v Qureshi & 2 others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) the Court at paragraph 36 relied in the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, wherein 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: -
“…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 thecase 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.”
13. Reliance is also placed in the Supreme Court’s decision, Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR and Ndishu & another v Muriungi (Civil Appeal 3 of 2020) [2022] KEHC 2 (KLR) wherein the Court at paragraph 25 opined that,
“Therefore, the general rule is that courts should determine a case on the issues that flow from the pleadings and the court may only pronounce judgement on the issues arising from the pleadings or such issue as the parties have framed for the court’s determination… From the above authorities, it is clear that a court has no power to make an order, unless by consent, which is outside the pleadings.”
14. On a different but fundamental issue, he submits that the Trial Court erred in considering the thresholds to be met in paternity issues in children matters as the Constitutional of Article 53 do not apply to the 2ndRespondent herein.
15. In the case of D N M v J K (Petition 133 of 2015) [2016] KEHC 3180 (KLR) (Constitutional and Human Rights)[2016] eKLR the Court at paragraphs 32 relied in in P. K. M vs. Senior Principal Magistrate Children's Court at Nairobi & another [2014]eKLR , the court adopted the test developed by the Supreme Court of India in Bhabani Prasad Jena v Convener Sec Orissa, Civil Appeal Nos 6222-6223 of 2010 “According to the court ,the question was whether the test was “eminently needed” to establish the truth and reach a just conclusion in the matter absent any other form of evidence and a prima facie case warranting the order ought to have been established first. The case involved a child.”
16. The Court at paragraph 33 stated thus, “A similar approach of truth-finding was followed by the court in WKG vs. JWM & another [2016] eKLR where the Court having alluded to Sections 107-9 of the Evidence Act (Cap 80) was of the view that in paternity cases where both parties were unable to prove paternity or non-paternity, the court could opt for a scientific method for conclusive results. The court seemed to give prominence to a truth finding mission than to the dispute resolution duty of the court in an adversarial system. The case involved two non-consenting adults. Sibling DNA testing was ordered to help establish paternity.”
17. The Appellant herein presented before the Trial Court the evidence of two conflicting birth certificates and sought for a DNA order in an effort to know and/or find the truth regarding the paternity of the 2nd Respondent.
18. The Appellant having established a nexus of the relationship between him and the 2nd Respondent that is, the assertions by the 1st Respondent that the 2nd Respondent is his son, the Trial Court ought to have allowed the application to establish the truth according to him.
19. He also relies on ANM v FPA (suing as the father and next friend of the minor) [2021] eKLR wherein the Appellate Court in upholding the Trial Courts decision of ordering a DNA test at paragraph 55 stated that, “In my view, there is no justification why a decision and the only decision for that matter, being the paternity of the subject ought to have been postponed to another day. In so holding I am not stating that any claim to paternity must of necessity call for DNA test. A basis must be laid upon which such a test would be undertaken. In this case in light of the conflicting information contained in the two certificates of birth and as there was no evidence as to which one was genuine, it was only fair, just and expedient that the DNA test be undertaken.”
20. He refers to the case of DB v JK (Constitutional Petition 10
of 2023) [2024] KEHC 12796 (KLR) wherein the Court in
dismissing an application for DNA opined that when the
application involves an adult, the applicant ought to establish
special circumstances that would call for special consideration.
The Court at paragraph 39 relied on R.K vs. J.K & Another
[2016]eKLR, wherein the Court held
that,
“…a DNA test will not be ordered unless there are clear circumstances that justify the making of such an order. It calls for a balance to be made in the circumstances of each case between the needs of a child and the emphasis is on “child”, and the rights of the alleged father to privacy, bodily security and integrity. If the facts and circumstances of the case lead the court to believe that a prima facie case has been made out that the alleged father of the child in respect of whom orders of DNA are sought, as was the case in MW vs KC [2005]eKLR relied on by the petitioner, where the mother of the child and the alleged father had been cohabiting, then the constitutional imperative in Article 53 demand that the best interests of the child should be the paramount consideration, and would override the right to privacy of the putative father” Taking the above factors into consideration in the present case, I am constrained to find that a case has not been made out by the petitioner that would justify the grant of the orders that she seeks. As noted before, she is an adult of 35, so the constitutional dictates of Article 53 do not apply with respect to her. Secondly, she has not, on a prima facie basis established any biological relations with the 1strespondent to warrant the grant of the orders for DNA testing that she seeks against him.”
20. In addition, he submits that the request for DNA test is necessitated by the Appellant’s need to protect his Constitutional rights under Article 40 which according to him amounts to special circumstances which the Trial Court should have considered. He submits that his right of protection of property slightly prevails over and/or limits the 2nd Respondent’s right to bodily integrity and right to privacy.
21. He relies in the case of DNM v JK (supra) the Court at paragraph 35 held thus, “It emerges from the case law that for an order for DNA testing to issue, an applicant has to establish that some right recognized by the Constitution has been violated or infringed. The applicant must also establish the biological relations with the respondent...”
22. He submits that the Appellant herein has laid the factual and legal basis of seeking the orders for a DNA test.
23. He reiterates that he has established a biological nexus through the production of the conflicting birth certificates and assertions by the 1st Respondent that the 2nd Respondent is his son.
The 2nd Respondent; s case:
24. According to the 2nd Respondent, The Appellant’s application dated 29thApril 2024 was simply a collateral attack on the Judgement and findings made in the substantive suit to wit; Murang’a Misc. No. E011 of 2022 Richard Maina Njoroge Vs Susan Wanjira Muinami.
25. His application simply seeks to reopen a concluded matter that has already been fully litigated, adjudicated upon and the decree executed.
26. A judgement was delivered on 7thDecember 2022 and a subsequent decree extracted in Murang’a Misc No. E011 Of 2022 Richard Maina Njoroge Vs Susan Wanjira Muinami the property in dispute, LOC.20/MIRIRA/4800, became jointly registered in the names of the Appellant and the Respondents.
27. In Murang’a Misc. No. E011 of 2022 Richard Maina Njoroge Vs Susan Wanjira Muinami, the trial court considered, among other issues, ownership and beneficial interest over the said property, as well as the familial relationship between the parties.
28. The court made a finding based on pleadings, evidence, and submissions that the 2nd Respondent was indeed the Appellant’s biological son and that the Appellant held the property in trust for the Respondents.
29. The Appellant did not appeal or seek review of that judgment within the stipulated period. More than one year later, he has filed a fresh application disguised as a “miscellaneous” matter dated 29th April 2024, seeking to reopen the question of paternity through a DNA test. The Application was dismissed and the said ruling forms the subject of the instant appeal.
30. It is the Respondent’s case that Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya, provides in mandatory terms that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
31. The doctrine of res judicata, is designed to protect the finality of litigation, prevent multiplicity of suits, and safeguard the integrity of judicial determinations.
32. The present appeal, is seeking to reopen a dispute already heard and conclusively determined in MISC. No. E011 of 2022, which offends the doctrine and is therefore incompetent according to the Respondent.
33. The Appellant’s attempt to revive a concluded dispute through a DNA application is procedurally untenable and amounts to an abuse of court process.
34. The Court of Appeal in Civil Appeal 182 of 2016 [2023] Mahinda v Farah underscored the rationale of this provision, stating that: ‘‘The provision is on the fundamental doctrine that there should be an end to litigation. The rationale for the doctrine of resjudicata exists to protect public interest so that a party should
not endlessly be dragged into litigation over the same
issue or subject matter that has otherwise been
conclusively determined by a court of competent
jurisdiction.’’
35. Further, the Court upheld the dismissal of the application, holding that:
“The learned judge’s dismissal of the application was
not based on wrong interpretation of the law and facts,
indeed his decision was proper and sound in the
circumstances. The upshot is that this appeal lacks
merit and should be dismissed. I award costs of the
appeal to the respondent.”
36. It is the Respondent’s case that trial court made a finding that the 2nd Respondent was the applicant’s son. This was proven through the mother who produced his birth certificate as well as by the mother’s sister.
37. The issue of the relationship between the applicant and the 2nd Respondent was determined in merit.
38. The other issue that this court considers is whether the Learned Magistrate erred in considering extraneous issues. In Mbogo & Another v Shah [1968] EA 93, the Court of Appeal for East Africa laid down the guiding principle on appellate interference with judicial discretion. Sir Clement De Lestang V-P: held that:
“….. I think it is well settled that this court will not interfere with the exercise of its 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 has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’
39. Against this backdrop, the Respondent submits that the Appellant’s contention that the trial court relied on extraneous issues by referring to the land dispute in MISC. No. E011 of 2022 is unfounded. We urge this Honourable court to have a look at pg. 89 of the Record where at the last line the court aptly framed the sole issue for determination being whether the court should allow for the DNA to be conducted in respect of the 2nd Respondent. The court went on to correctly analyze and determine the sole issue for determination.
40. Posing the question why the Appellant chose to move the court vide a miscellaneous application instead of seeking the same orders in MISC. No. E011 of 2 022. This, by any stretch of imagination, cannot be taken as evidence of the court having considered extraneous matters. We agree with the decision in ERK v JCC (Civil Appeal No. 8 of 2018) [2020]eKLR as Quoted in paragraph 10 of the appellants submissions.
41. The Appellant argues that the trial court considered the issue of privacy and bodily integrity, which he says was not raised by the Respondents. With respect, that argument is legally unsustainable according to the Respondent. Any order compelling a person to undergo a DNA test necessarily implicates constitutional rights, including the right to privacy under Article 31 and bodily integrity under Article 28 of the Constitution of Kenya, 2010.
42. In buttressing our argument, he relies on the pronouncement in Civil Appeal E034 of 2021 [2022] MAO v JOO & another, where the court stated that:
‘‘In S.W.W. v G.M.K. (2012) eKLR where the petitioner sought
as one of her prayers, for the respondent to be subjected to a
DNA test to ascertain whether he was her biological father, in
declining the prayer, the court was of the view that:
Ordering the respondent to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which rights are protected under the Bill of Rights. The Petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.”
43. Accordingly, the Learned Magistrate’s consideration of privacy and bodily integrity were not extraneous or improper matters as such matters were considered in the context of whether the appellant had inter alia provided sufficient grounds to justify the orders sought.They were necessary, lawful, and constitutionally mandated inquiries to expose the true purpose of the DNA application
44. Analysis;
The following are the issues for determination
a) Whether the doctrine of resjudicata applies.
b) Whether the trial court considered extraneous factors.
c) Whether the Appellant had to file a substantive suit to anchor his application for DNA orders.
45. This court finds that the trial Court did not fall into error in its finding on the application for DNA. The order that the applicant sought is deeply tucked and anchored in Article 31 of the Constitution.
46. The application presents a conflict of rights between two
adults. The issuance of the DNA order in situations like the
one at hand calls for the application of Article 24 of the
Constitution since the 2nd Respondent’s right to Privacy is
being limited so as to allow the Applicant to realize his right
to property as guaranteed under Article 40 of the
Constitution.
47. Given that the Applicant and the 2nd Respondent are adults,
then the bill of rights dispute cannot be brought under
Article 53 of the Constitution which makes provision for
children matter and so hold.
48. The ramifications of granting the orders sought are weighty.In order to advance their respective cases, such proceedings would call for a viva voice hearing or better still a hybrid form of hearing within the Mutunga Rules framework.
49. This would no doubt be a process that would be appropriately achieved through a substantive suit and not through a Miscellaneous Application like the one made by the appellant and I so hold.
50. In arriving at this finding, this court is guided by Civil Appeal E040 of 2022 [2024] RSW v LOM it was held that:
‘‘Secondly, an application for a DNA test, ought to be made in a substantive suit, either in a succession cause, or a children’s matter, or in a constitutional petition. The order for it ought not to be sought in miscellaneous proceedings. The reason for this is that an order for a DNA test is very invasive or intrusive, in terms of the rights to integrity and privacy of those affected.’’
51. The court finds that the trial court did not fall into error in arriving at the impugned decision that a Miscellaneous Application was not the appropriate procedure for moving the court.
52. On another front, it is my finding that there was nothing wrong in dismissing the Appellant's Application on the basis of the pendency of an Environment and Land Matter in Murang'a MISC. NO. E011 OF 2022.There is nothing untoward in introducing the fact in the impugned ruling in the Environment and Land matter of Murang'a Misc. No. E011 of 2022 that the court made a determination that the Appellant was the 2nd Respondent’s father.
53. The court finds nothing wrong in the fact that the trial court
delved into issues of the privacy of the 2nd Respondent since
that was entangled with the relief that the Applicant was
seeking through the application.
54. I note the Applicant in his Affidavit that was used during the trial deponed that, “I subsequently instituted a suit before Murang’a Magistrate Court Vide a Plaint dated 31st January 2022 and filed on the 18th of February 2022 against the 1st Respondent and the Registrar wherein the Court heard both parties and delivered its judgment on the 7th December 2022.”The Court held that the Applicant was the biological father to the 2nd Respondent.
55. In the appeal he is seeking orders that will in effect redetermine paternity. The application was an appeal in disguise in my opinion. Had the trial magistrate granted the orders as sought in the impugned ruling, then that would have contradicted the judgment that was delivered in the Elc court.
56. The appellant does not tell the court why he did not challenge
the judgment of Murang'a MISC. NO. E011 OF 2022
through an Appeal as opposed to filing the Miscellaneous
Application. The doctrine of Res judicata applies in the light
of the foregoing analysis. The parties, the issues are the same and there is a determination of the issue by a court of competent jurisdiction.
57. Costs;
The Supreme Court in the case of Jasbir Singh Rai &
Others vs. Tarlochan Rai & Others observed that;
'In the classic common law style, the courts have to proceed
on a case by case basis, to identify "good reasons" for such a
departure. An examination of evolving practices on this
question shows that, as an example, matters in the domain of
public interest litigation tend to be exempted from award of
costs…”
58. The Applicant shall bear costs.
59. Determination;
The Appeal lacks merit.
Order;
The appeal is dismissed with costs.
Delivered, Dated and Signed on this 24th June 2026 at Eldoret High Court.
a) THAT the learned magistrate erred in law and in fact in dismissing the Appellant's application dated 29th April 2024.
b) THAT the learned magistrate erred in law and in fact in finding that the Appellant had to file a substantive suit to anchor his application for DNA orders and subsequently dismissing the Application.
c) THAT the learned magistrate erred in law and in fact in dismissing the Appellant's Application on the basis of the pendency of an Environment and Land Matter in Murang'a MISC. NO. E100 OF 2022.
d) THAT the learned magistrate erred in law and in fact in taking into account the proceedings in Murang'a MISC. NO. E011 OF 2022 in making its determination; whilst the issues in Murang'a MISC. NO. EO11 OF 2022 are land related and not those of paternity.
e) THAT the learned magistrate erred in law and in fact in failing to consider the Appellant's further affidavit filed in court on 10th June 2024 as well as the Authorities relied on by the Appellant's counsel in their oral submissions to court.
f) THAT the learned magistrate erred in law and in fact in finding that the Appellant had not met the threshold required for an order for DNA to issue.
g) THAT the learned magistrate erred in law and in fact in delving into issues of the privacy of the 2nd Respondent while the same had not been raised by the 2nd Respondent in his pleadings.
h) THAT the learned magistrate erred in law and fact in finding that the Appellant had not demonstrated the grave importance of the orders sought despite the fact that the Appellant produced evidence that he was likely to become homeless and destitute at the behest of a stranger to his estate.
i) THAT the learned magistrate erred in law and in fact in failing to grant the orders for DNA test to be conducted to ascertain the issue of paternity between the Appellant and the 2nd Respondent with finality despite the presence of multiple birth certificate on court's record each indicating conflicting details therein.
2. The Appellant is seeking the following orders:
a. THAT the Appeal is allowed in its entirety.
b. THAT the ruling delivered on the 12th June 2024 by the Chief Magistrate Court at Murang'a in Murang'a MISC. CIVIL APPLICATION E023 OF 2024 be set aside.
c. THAT the Honourable Court be pleased to order the 2nd Respondent herein to submit to a DNA test at the Government Chemist, Kenyatta National Hospital on a day to be set by the Honourable Court.
d. THAT the costs of this Appeal be awarded to the Appellants.
3. The Appellant’s Case:
4. He submits that an application for DNA test can be made by way of a stand alone by way of a Miscellaneous Application particularly where the issue of paternity is central and urgent.
5. Reliance is made in the case of FKW (suing as the mother and next friend of GDW (Minor) v DMM [2015] eKLR where the Court allowed a miscellaneous application for DNA test against the Respondent.
6. He also relies on the case of LNJ v GKM [2019] KEHC 1030 (KLR) where the applicant moved the Court vide a Miscellaneous Application seeking the Respondent to be subjected to a DNA test.The Court allowed the Application.
7. The applicant believes that the trial Court relied heavily on the issue of proprietorship that was a central issue Murang’a Misc. No. E011 of 2022 which was a none issue given that what was before the court was the determination of paternity.
8. He strongly believes that this influenced the mind of the trial Court thus causing a miscarriage of justice.
9. He places reliance in the case of KMN v EG (Family Appeal E003 of 2021) [2022] KEHC 11302 (KLR) where the Court at paragraph 31 opined thus,
“From the wording of the two provisions, the court has wide discretionary powers to vary any order/orders made if the interest of justice demands. It is trite that unless found that the trial court applied a wrong legal principle or took into consideration irrelevant or extraneous matter in arriving at its conclusion or finding, an appellate court should exercise restraint not to interfere. See Mbogo and another V Shah(1968) EAP where the court stated that; “An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been an injustice”
10. In ERK v JCC (Civil Appeal No. 8 of 2018) [2020] eKLR, the Court at paragraph 9 held that, “The 2ndground of appeal is that the magistrate wrongly based her decision on extraneous issues. In the submissions the counsel for the appellant has not pointed at any extraneous issue that the magistrate brought into the judgment which was not part of the pleadings and submissions. I dismiss this ground as it is baseless.” We submit that we have established and/or established the basis of the error made by the Trial Court.He also relies on the case of Patrick Sosio Lekakeny v Tomito Alex Tampushi & 3 others [2018] eKLR to fortify the point.
11. On to another point he submits that parties are bound by their pleadings thus .A Court of law is limited to the specific issues raised by parties to a suit like the issues of breach of the Respondent’s privacy which issue was not pleaded and/or raised by the Respondents. He is dissatisfied that this notwithstanding, the court considered it.
12. In Palms Resort Limited v Qureshi & 2 others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) the Court at paragraph 36 relied in the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, wherein 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: -
“…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 thecase 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.”
13. Reliance is also placed in the Supreme Court’s decision, Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR and Ndishu & another v Muriungi (Civil Appeal 3 of 2020) [2022] KEHC 2 (KLR) wherein the Court at paragraph 25 opined that,
“Therefore, the general rule is that courts should determine a case on the issues that flow from the pleadings and the court may only pronounce judgement on the issues arising from the pleadings or such issue as the parties have framed for the court’s determination… From the above authorities, it is clear that a court has no power to make an order, unless by consent, which is outside the pleadings.”
14. On a different but fundamental issue, he submits that the Trial Court erred in considering the thresholds to be met in paternity issues in children matters as the Constitutional of Article 53 do not apply to the 2ndRespondent herein.
15. In the case of D N M v J K (Petition 133 of 2015) [2016] KEHC 3180 (KLR) (Constitutional and Human Rights)[2016] eKLR the Court at paragraphs 32 relied in in P. K. M vs. Senior Principal Magistrate Children's Court at Nairobi & another [2014]eKLR , the court adopted the test developed by the Supreme Court of India in Bhabani Prasad Jena v Convener Sec Orissa, Civil Appeal Nos 6222-6223 of 2010 “According to the court ,the question was whether the test was “eminently needed” to establish the truth and reach a just conclusion in the matter absent any other form of evidence and a prima facie case warranting the order ought to have been established first. The case involved a child.”
16. The Court at paragraph 33 stated thus, “A similar approach of truth-finding was followed by the court in WKG vs. JWM & another [2016] eKLR where the Court having alluded to Sections 107-9 of the Evidence Act (Cap 80) was of the view that in paternity cases where both parties were unable to prove paternity or non-paternity, the court could opt for a scientific method for conclusive results. The court seemed to give prominence to a truth finding mission than to the dispute resolution duty of the court in an adversarial system. The case involved two non-consenting adults. Sibling DNA testing was ordered to help establish paternity.”
17. The Appellant herein presented before the Trial Court the evidence of two conflicting birth certificates and sought for a DNA order in an effort to know and/or find the truth regarding the paternity of the 2nd Respondent.
18. The Appellant having established a nexus of the relationship between him and the 2nd Respondent that is, the assertions by the 1st Respondent that the 2nd Respondent is his son, the Trial Court ought to have allowed the application to establish the truth according to him.
19. He also relies on ANM v FPA (suing as the father and next friend of the minor) [2021] eKLR wherein the Appellate Court in upholding the Trial Courts decision of ordering a DNA test at paragraph 55 stated that, “In my view, there is no justification why a decision and the only decision for that matter, being the paternity of the subject ought to have been postponed to another day. In so holding I am not stating that any claim to paternity must of necessity call for DNA test. A basis must be laid upon which such a test would be undertaken. In this case in light of the conflicting information contained in the two certificates of birth and as there was no evidence as to which one was genuine, it was only fair, just and expedient that the DNA test be undertaken.”
20. He refers to the case of DB v JK (Constitutional Petition 10
of 2023) [2024] KEHC 12796 (KLR) wherein the Court in
dismissing an application for DNA opined that when the
application involves an adult, the applicant ought to establish
special circumstances that would call for special consideration.
The Court at paragraph 39 relied on R.K vs. J.K & Another
[2016]eKLR, wherein the Court held
that,
“…a DNA test will not be ordered unless there are clear circumstances that justify the making of such an order. It calls for a balance to be made in the circumstances of each case between the needs of a child and the emphasis is on “child”, and the rights of the alleged father to privacy, bodily security and integrity. If the facts and circumstances of the case lead the court to believe that a prima facie case has been made out that the alleged father of the child in respect of whom orders of DNA are sought, as was the case in MW vs KC [2005]eKLR relied on by the petitioner, where the mother of the child and the alleged father had been cohabiting, then the constitutional imperative in Article 53 demand that the best interests of the child should be the paramount consideration, and would override the right to privacy of the putative father” Taking the above factors into consideration in the present case, I am constrained to find that a case has not been made out by the petitioner that would justify the grant of the orders that she seeks. As noted before, she is an adult of 35, so the constitutional dictates of Article 53 do not apply with respect to her. Secondly, she has not, on a prima facie basis established any biological relations with the 1strespondent to warrant the grant of the orders for DNA testing that she seeks against him.”
20. In addition, he submits that the request for DNA test is necessitated by the Appellant’s need to protect his Constitutional rights under Article 40 which according to him amounts to special circumstances which the Trial Court should have considered. He submits that his right of protection of property slightly prevails over and/or limits the 2nd Respondent’s right to bodily integrity and right to privacy.
21. He relies in the case of DNM v JK (supra) the Court at paragraph 35 held thus, “It emerges from the case law that for an order for DNA testing to issue, an applicant has to establish that some right recognized by the Constitution has been violated or infringed. The applicant must also establish the biological relations with the respondent...”
22. He submits that the Appellant herein has laid the factual and legal basis of seeking the orders for a DNA test.
23. He reiterates that he has established a biological nexus through the production of the conflicting birth certificates and assertions by the 1st Respondent that the 2nd Respondent is his son.
The 2nd Respondent; s case:
24. According to the 2nd Respondent, The Appellant’s application dated 29thApril 2024 was simply a collateral attack on the Judgement and findings made in the substantive suit to wit; Murang’a Misc. No. E011 of 2022 Richard Maina Njoroge Vs Susan Wanjira Muinami.
25. His application simply seeks to reopen a concluded matter that has already been fully litigated, adjudicated upon and the decree executed.
26. A judgement was delivered on 7thDecember 2022 and a subsequent decree extracted in Murang’a Misc No. E011 Of 2022 Richard Maina Njoroge Vs Susan Wanjira Muinami the property in dispute, LOC.20/MIRIRA/4800, became jointly registered in the names of the Appellant and the Respondents.
27. In Murang’a Misc. No. E011 of 2022 Richard Maina Njoroge Vs Susan Wanjira Muinami, the trial court considered, among other issues, ownership and beneficial interest over the said property, as well as the familial relationship between the parties.
28. The court made a finding based on pleadings, evidence, and submissions that the 2nd Respondent was indeed the Appellant’s biological son and that the Appellant held the property in trust for the Respondents.
29. The Appellant did not appeal or seek review of that judgment within the stipulated period. More than one year later, he has filed a fresh application disguised as a “miscellaneous” matter dated 29th April 2024, seeking to reopen the question of paternity through a DNA test. The Application was dismissed and the said ruling forms the subject of the instant appeal.
30. It is the Respondent’s case that Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya, provides in mandatory terms that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
31. The doctrine of res judicata, is designed to protect the finality of litigation, prevent multiplicity of suits, and safeguard the integrity of judicial determinations.
32. The present appeal, is seeking to reopen a dispute already heard and conclusively determined in MISC. No. E011 of 2022, which offends the doctrine and is therefore incompetent according to the Respondent.
33. The Appellant’s attempt to revive a concluded dispute through a DNA application is procedurally untenable and amounts to an abuse of court process.
34. The Court of Appeal in Civil Appeal 182 of 2016 [2023] Mahinda v Farah underscored the rationale of this provision, stating that: ‘‘The provision is on the fundamental doctrine that there should be an end to litigation. The rationale for the doctrine of resjudicata exists to protect public interest so that a party should
not endlessly be dragged into litigation over the same
issue or subject matter that has otherwise been
conclusively determined by a court of competent
jurisdiction.’’
35. Further, the Court upheld the dismissal of the application, holding that:
“The learned judge’s dismissal of the application was
not based on wrong interpretation of the law and facts,
indeed his decision was proper and sound in the
circumstances. The upshot is that this appeal lacks
merit and should be dismissed. I award costs of the
appeal to the respondent.”
36. It is the Respondent’s case that trial court made a finding that the 2nd Respondent was the applicant’s son. This was proven through the mother who produced his birth certificate as well as by the mother’s sister.
37. The issue of the relationship between the applicant and the 2nd Respondent was determined in merit.
38. The other issue that this court considers is whether the Learned Magistrate erred in considering extraneous issues. In Mbogo & Another v Shah [1968] EA 93, the Court of Appeal for East Africa laid down the guiding principle on appellate interference with judicial discretion. Sir Clement De Lestang V-P: held that:
“….. I think it is well settled that this court will not interfere with the exercise of its 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 has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’
39. Against this backdrop, the Respondent submits that the Appellant’s contention that the trial court relied on extraneous issues by referring to the land dispute in MISC. No. E011 of 2022 is unfounded. We urge this Honourable court to have a look at pg. 89 of the Record where at the last line the court aptly framed the sole issue for determination being whether the court should allow for the DNA to be conducted in respect of the 2nd Respondent. The court went on to correctly analyze and determine the sole issue for determination.
40. Posing the question why the Appellant chose to move the court vide a miscellaneous application instead of seeking the same orders in MISC. No. E011 of 2 022. This, by any stretch of imagination, cannot be taken as evidence of the court having considered extraneous matters. We agree with the decision in ERK v JCC (Civil Appeal No. 8 of 2018) [2020]eKLR as Quoted in paragraph 10 of the appellants submissions.
41. The Appellant argues that the trial court considered the issue of privacy and bodily integrity, which he says was not raised by the Respondents. With respect, that argument is legally unsustainable according to the Respondent. Any order compelling a person to undergo a DNA test necessarily implicates constitutional rights, including the right to privacy under Article 31 and bodily integrity under Article 28 of the Constitution of Kenya, 2010.
42. In buttressing our argument, he relies on the pronouncement in Civil Appeal E034 of 2021 [2022] MAO v JOO & another, where the court stated that:
‘‘In S.W.W. v G.M.K. (2012) eKLR where the petitioner sought
as one of her prayers, for the respondent to be subjected to a
DNA test to ascertain whether he was her biological father, in
declining the prayer, the court was of the view that:
Ordering the respondent to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which rights are protected under the Bill of Rights. The Petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.”
43. Accordingly, the Learned Magistrate’s consideration of privacy and bodily integrity were not extraneous or improper matters as such matters were considered in the context of whether the appellant had inter alia provided sufficient grounds to justify the orders sought.They were necessary, lawful, and constitutionally mandated inquiries to expose the true purpose of the DNA application
44. Analysis;
The following are the issues for determination
a) Whether the doctrine of resjudicata applies.
b) Whether the trial court considered extraneous factors.
c) Whether the Appellant had to file a substantive suit to anchor his application for DNA orders.
45. This court finds that the trial Court did not fall into error in its finding on the application for DNA. The order that the applicant sought is deeply tucked and anchored in Article 31 of the Constitution.
46. The application presents a conflict of rights between two
adults. The issuance of the DNA order in situations like the
one at hand calls for the application of Article 24 of the
Constitution since the 2nd Respondent’s right to Privacy is
being limited so as to allow the Applicant to realize his right
to property as guaranteed under Article 40 of the
Constitution.
47. Given that the Applicant and the 2nd Respondent are adults,
then the bill of rights dispute cannot be brought under
Article 53 of the Constitution which makes provision for
children matter and so hold.
48. The ramifications of granting the orders sought are weighty.In order to advance their respective cases, such proceedings would call for a viva voice hearing or better still a hybrid form of hearing within the Mutunga Rules framework.
49. This would no doubt be a process that would be appropriately achieved through a substantive suit and not through a Miscellaneous Application like the one made by the appellant and I so hold.
50. In arriving at this finding, this court is guided by Civil Appeal E040 of 2022 [2024] RSW v LOM it was held that:
‘‘Secondly, an application for a DNA test, ought to be made in a substantive suit, either in a succession cause, or a children’s matter, or in a constitutional petition. The order for it ought not to be sought in miscellaneous proceedings. The reason for this is that an order for a DNA test is very invasive or intrusive, in terms of the rights to integrity and privacy of those affected.’’
51. The court finds that the trial court did not fall into error in arriving at the impugned decision that a Miscellaneous Application was not the appropriate procedure for moving the court.
52. On another front, it is my finding that there was nothing wrong in dismissing the Appellant's Application on the basis of the pendency of an Environment and Land Matter in Murang'a MISC. NO. E011 OF 2022.There is nothing untoward in introducing the fact in the impugned ruling in the Environment and Land matter of Murang'a Misc. No. E011 of 2022 that the court made a determination that the Appellant was the 2nd Respondent’s father.
53. The court finds nothing wrong in the fact that the trial court
delved into issues of the privacy of the 2nd Respondent since
that was entangled with the relief that the Applicant was
seeking through the application.
54. I note the Applicant in his Affidavit that was used during the trial deponed that, “I subsequently instituted a suit before Murang’a Magistrate Court Vide a Plaint dated 31st January 2022 and filed on the 18th of February 2022 against the 1st Respondent and the Registrar wherein the Court heard both parties and delivered its judgment on the 7th December 2022.”The Court held that the Applicant was the biological father to the 2nd Respondent.
55. In the appeal he is seeking orders that will in effect redetermine paternity. The application was an appeal in disguise in my opinion. Had the trial magistrate granted the orders as sought in the impugned ruling, then that would have contradicted the judgment that was delivered in the Elc court.
56. The appellant does not tell the court why he did not challenge
the judgment of Murang'a MISC. NO. E011 OF 2022
through an Appeal as opposed to filing the Miscellaneous
Application. The doctrine of Res judicata applies in the light
of the foregoing analysis. The parties, the issues are the same and there is a determination of the issue by a court of competent jurisdiction.
57. Costs;
The Supreme Court in the case of Jasbir Singh Rai &
Others vs. Tarlochan Rai & Others observed that;
'In the classic common law style, the courts have to proceed
on a case by case basis, to identify "good reasons" for such a
departure. An examination of evolving practices on this
question shows that, as an example, matters in the domain of
public interest litigation tend to be exempted from award of
costs…”
58. The Applicant shall bear costs.
59. Determination;
The Appeal lacks merit.
Order;
The appeal is dismissed with costs.
Delivered, Dated and Signed on this 24th June 2026 at Eldoret High Court.