WHEN THE GENES DO NOT FIT.

By C Oyugi-Akinyi* and G Wanyama. *

INTRODUCTION.

We are a common law jurisdiction where civil marriages are one of the ways of getting
hitched.1These types of marriages inherited from the English legal system came attached
with the common law perspective of that being a parent is a private economic
relationship.2The justification advanced by legal scholars is that the marital status flows
from a civil contract willingly entered into by a man and woman for the benefit of a man’s
unborn biological children.3Consequently, a married man’s biological children have the
right to :(1) maintenance; (2) protection ; (3) and a standard of education their father can
afford.4These common law rights of children, in turn, create a legal obligation on married
men to ensure that children born in wedlock enjoy these rights.5

It is only married men who have the capacity to acquire common law parental rights
because English law uses civil marriages as a tool to merge the legal personality of a
woman with that of her husband.6The common law was generated by a deeply Christian
society, therefore, Christian ideas on the ideal family structure influenced English
common law to :(1)make a husband the head of a family;(2) and define fatherhood as the
legal obligation to pay for the upbringing of their biological children imposed only on
married men.7As a safeguard for married men against the indignity of paying for the
upbringing of their wives’ adulterous children and to discourage women from having

*LLB CUEA: LLB CUEA wanyamalaw@gmail.com

1
S17 Marriage Act 2014 (MA 2014): S24 MA 2014
2
JE Hovenden(ed) Blackstone Commentaries on the Laws of England, Volume I (London: Stevens &Sons,1836)
at 423-447(1 BlaCom)
3
1 Blacom 434
4
1 Blacom 447-451
5
JL Hill, what does it mean to be a "parent"? The claims of biology as the basis for parental rights, (NYU Law R,
66,1991) pgs. 353-420. (Hill 1991)
6
1Blacom 443-444: AJ Cherlin, American Marriage in the Early Twenty-First Century (2005) pgs. 33-
55(Cherlin 2005): online at http://www.jstor.org/stable/3556562
7
Hill 1991

1
extra-marital affairs or sex before marriage, English common law uses the presumption of
legitimacy.8

The 21st century has been marked by the migration in family law from parental rights to
that of parental responsibility for married and unmarried men.9Even in this new legal
relationship between men and their biological children, the legal conception of fatherhood
remains a legal obligation to pay for the upbringing of a child.10 The establishment of
paternity, through DNA testing, has made old common law principles in the law of
bastardy11 obsolete. The study will maintain that for Kenyan law to reconcile automatic
acquisition of parental responsibility by married and unmarried men with the
corresponding obligation to pay for the upkeep of their biological children, women who
misrepresent the paternity of their child to secure a child maintenance order can be
reprimanded using the tort of deceit.

BACKGROUND.

Kenya is made up of African societies that are inherently patriarchal.12Consequently, the

legislature as a male-dominated institution tends to make laws related to family matters
that favour men to the detriment of women.13This is why the statutory obligation to pay

8
NH Nicolas, A Treatise on the Law of Adulterine Bastardy, with a report of the Banbury case (London: Pickering
1836) :P Laslett, The World We Have Lost (1965)pgs. 140-141(Laslett 1971) Review by Kieran Flanagan
Studies (Irish Quarterly Review Vol. 63(249) 1974), pgs. 110-114:online at
http://www.jstor.org/stable/30088084
9
Hill 1991
10
MW v KC [2004] KeHC Misc App No 105 of 2004(Unrptd) [MW Case]: EZ Ongoya, The Emerging
Jurisprudence on the Provisions of Act No. 8 of 2001, Laws Of Kenya :The Children Act (KLR J, vol 1,2007) pg.
221-224(Ongoya 2007): L Cannold, Who's the father?: Rethinking the moral ‘crime’ of paternity fraud, (2008)
pgs.249–256(Cannold 2008):online at www.elsevier.com/
11
Foxcroft [1282] 10 Edw 7;1 Rol Abr 359[Foxcroft]: Del Heith [1306]34 Edw I [Del Heith] :Radwell’s Case
[1290]18 Edw I [Radwell]:Done and Egerton v Hinton and Starkey [1617] 14 Jaq I [Done and Egerton] :Suel Case
[1359]33 Edw III [Suel] :Thacker Case[1628]4 Car I[Thacker]:Lady Roos [1666] 18 Car II[Lady Roos] :Pendrell
v Pendrell[1732]5Geo II[Pendrell] :King v Luffe[1807]8 East 208 [Luffe] :St George v St Margaret 5 Anne
[1706]:Banbury Peerage Case [1811]::Smyth v Chamberlayne[1792]:Routledge v Carruthers[1806]
12
R Aura-Odhiambo and M Oduor(eds) Gender Equality (2011) in PLO Lumumba et al (eds)The
Constitution of Kenya: Contemporary Readings (Nairobi: Law Africa, 2012): R Aura-Odhiambo, International
Law Protecting Women from Domestic Abuse: Is it a Fallacy? (ANULJ 2(1)2014): R Aura-Odhiambo,
JUDICIAL RESPONSES TO WOMEN RIGHTS VIOLATIONS IN KENYA IN THE POST 2007CONTEXT,
(Egerton University, Faculty Paper,2014): R Aura-Odhiambo, Situational Analysis and the Legal Framework
on Sexual and Gender-Based Violence in Kenya: Challenges and Opportunities (2014): online at
www.kenyalaw.org/
13
L Thomas, The Politics of the womb: Kenyan Debates over the Affiliation Act (2000) pg. 151-176 (Thomas
2000): online at www.jstor.org/stable/4187372

2
for the upkeep of children born out of wedlock under the Affiliation Act was done away
with and why when the concept of parental responsibility was introduced to our legal
system through a statute,14 it pegged the acquisition of parental responsibility on the
consent by the putative father.15

This aspect of CA 2001, as well as the statutory need for a putative father's consent prior
to being put on record as the father of a child, 16were successfully challenged and declared
unconstitutional by a landmark decision.17 This LNW decision was interpreted to mean
that: (1)parental responsibility automatically follows the establishment of paternity
through DNA testing;18(2) the registrar of births can rely on representations about the
paternity of their child by a mother as the basis of recording a putative father as the legal
father of a child ;(3) the registrar of births does not need the consent of a putative father
prior to the entry of their name as the legal father of a child ;(4) and that entry into the
records of births as the biological father of a child is enough for a court to issue a child
support order against the putative father.

This attack on the status quo by Justice Mumbi in the LNW Case has had the corresponding
effect of men demanding that it should only be after paternity is established by DNA
testing that the law can then legitimately impose a child maintenance order against
them.19Justice Githinji in SM case 20, while quashing a child maintenance order, said inter
alia that:

[T]he respondent has stated clearly that the applicant is a stranger to him, they have
never had a relationship, sex or even cohabited. He expressed that he will seek leave
of the court for a DNA examination. The produced birth certificate was obtained
on 8th February 2016 while the suit and the application were filed on 11/02/2016.

14
The Childrens Act No..8 of 2001 (CA 2001)
15
S25 CA 2001
16
S12 Registration of Births and Deaths Act, Chapter 149 Laws of Kenya (Cap 149)
17
LNW v AG and 3 Ors [2016] eKLR [LNW case] per Mumbi J
18
S25 CA 2001
19
SM v SC [2017] eKLR [SM Case]
20
ibid

3
 It is therefore clear that the birth certificate was obtained for filing this suit and the
application….

The respondent stated that he did not give consent for his name to be indicated as
the father of the child in the birth certificate, and the said birth certificate was
fraudulently obtained. I wish in that regard to state here that appearance of a
person’s name as a parent of a child in the birth certificate, where the authenticity
of such birth certificate is not established and where a party disputes parenthood,
the birth certificate cannot safely be held as prima facie evidence that the person
named is the child’s parent.21

The LNW Case decision has also led to men demanding that if the parental authority is
automatic and fatherhood means that a married or unmarried men must pay for the
upkeep of their biological children, the law should also provide a remedy in situations
where women lied about the paternity of their children to secure a child maintenance
order.22

THE TORT OF DECEIT IN ENGLISH LAW.

As it shall be shown later, English law has opted to use the tort of deceit to address the
issue of paternity fraud and provide men with a legal remedy because a divorced wife or
sexual partner misrepresented the actual paternity of a child to fool a man into assuming
parental responsibility for a non-biological child.23For now, the paper will give a general
overview of the tort itself first. As a general rule, an action of deceit lies at common law
when a person ‘makes a fraudulent misrepresentation of fact with the intent to induce
another to act upon the misrepresentation to their detriment.’24This tort is traced back to
the decision in Pasley25 where the defendant was found tortuously liable for fraudulently
misrepresenting to the claimant that a third party was a person who wouldn’t default on

21
SM Case [2017]
22
The Standard,8th Oct 2011,Parental Fraudsters to face the Law: Online at
https://www.standardmedia.co.ke/article/2000044366/parental-fraudsters-to-face-law: The Star,6th Jan
2017, Men, Are Your Children Biologically Yours?:Online at http://www.the-
star.co.ke/news/2017/01/06/men-are-your-children-biologically-yours
23
ibid
24
J Murphy, Street on Torts ,12th edition (London: OUP 2007) pg330(Murphy 2007)
25
Pasley v Freeman [1789]3 Term Rep 51[Pasley]

4
the obligation to pay for goods supplied on credit.26 In subsequent English decisions, the
tort of deceit has been refined to the point that the following ingredients must be shown
by a claimant: (1)a false misrepresentation made knowingly;(2) or without belief in its
truth;(3) or without the representor caring whether it is true or false;27(4) with the intention
that a representee will act in reliance of the representation;(5) and the reliance the
representor wants causes damage to representee.28

There are some subsequent developments to this general rule on the tort of deceit
important to the study that explains why it became the way English law responded to
paternity fraud. The first rule is that a misrepresentation of facts may be inferred by a
court ‘from conduct calculated to mislead.’29The second rule is that active concealment of
the truth is actionable even though no positive misstatement of facts by representor
because it denies a representee an opportunity to acquire relevant information that they
would otherwise have got but for the representor’s conduct.30The third rule is that when
a representation was made that the representor believed at the time was true but afterwards
the representor finds out they had made a misleading representation but makes no effort
to update the representee , the representor is liable for the tort of deceit if the representee
goes on to suffer damage on the basis of the original statement that turned out to be false.31

PATERNITY FRAUD AND THE TORT OF DECEIT IN ENGLISH LAW.

The journey towards English law using the tort of deceit to address paternity started in
Damages for deceit.32 This case involved a who had been led to believe, over the course of
many years, by a woman with whom he had cohabited with that he was the biological
father of her child. The belief that he was the biological father led the claimant to spend
money and time in the upbringing of a non-biological child. A DNA test disestablished
paternity. The man sued their former sexual partner for damages. It was determined by

26
ibid
27
Derry v Peek [1889]14 app Cas 337 [Derry] per Lord Herschell: Polhill v Walter [1832] 3 B & Ad 114
28
Patel v Makanji [1957] EA 314: Mutsonga v Nyati [1984] KLR 425 per Kneller J: Koinange and 13 ors v
Koinage [1986] KLR 23: Ngacha v Chepsaat [2013] eKLR [Ngacha]:
29
R v Bernard [1837] 7 C& P 784 [Bernard]
30
Schneider v Health [1813] 3 Camp 506[Schneider]
31
Incledon v Watson [1862] 2 F& F 841[Incledon]:
32
P v B (Paternity Damages for deceit) [2001] 1 FLR 1041 [Damages for deceit case]

5
the court that the tort of deceit can be extended into the domestic context to address
paternity fraud between former cohabiting couples because ‘torts of negligence and
trespass to the person applied in a domestic context and so it would be anomalous to
exempt that of deceit.’33Burnton J said that the tort is not ideal when paternity fraud
occurred during an ex-wife’s coverture since doing so would go against the English
common law public policy of res judicata.34

In the subsequent Damages for paternity case, 35

a woman lied to the claimant that the
claimant was the biological father of her child. After their relationship broke down, the
claimant wanted shared custody and visitation rights. It is then that the respondent
revealed that the claimant was not the biological father of her child and therefore, he could
not acquire custody and visitation rights he would otherwise have been entitled to. A DNA
test proved that indeed, the child was not the biological child of the claimant and that the
respondent had lied. Justice Blofeld explained that the ingredients of paternity fraud
capable of giving rise to tortious liability were that : (1) a mother represents to a man that
he is the biological father of her child;(2) she is aware that her representation may be wrong
because she has multiple sexual partners ;(3) nevertheless, she makes representations about
the paternity of her child in order to induce a specific man to assume parental responsibility
for her child; (4) the representee must prove they relied on a misrepresentation made to
them about the paternity of a child to their detriment.36When this test was applied, the
court dismissed public policy arguments raised by the respondent and general damages
were given to the aggrieved man.

In the IVF case,37 the tort of deceit was extended to divorced spouses in cases where
paternity fraud was perpetrated by an adulterous wife during her coverture. In this case,
the parties had been married and planned to use IVF fertilization to get a child. The
understanding was that the claimant’s sperm would be the one used to fertilize the

33
Damages for deceit case [2001] per Burnton J at 1047
34
Damages for deceit case [2001] per Burnton J at 1048: R Bagshaw, Deceit within couples (LQR Vol 117,2001)
pg.571-574(Bagshaw 2001): D McNamara, The Tort of Deceit and Family Law: Some Recent Developments
(ISLR Vol 9 ,2001) pg.163(McNamara 2001)
35
A v B (Damages for Paternity) [2007] 2 FLR 1051[Damages for paternity case]
36
Damages for paternity case [2007] at 43
37
X v Y [2015] EW Misc B10 (cc) [IVF Case]

6
respondent’s eggs. However, without the knowledge of the claimant, the respondent
conspired with a third party she was having an extra-marital affair with to ensure it was
her lover’s sperm that fertilized her eggs. The IVF procedure was successful, and the
respondent lied to the claimant that her husband was the biological father of her child. She
never revealed the real paternity of her child during subsequent divorce proceeding to
secure child support from the claimant.

When the claimant went to court to secure shared custody and visitation rights for the
child he presumed was his, the respondent revealed he wasn’t the biological father to
frustrate his claim to these rights. A court-ordered DNA test conclusively proved that the
claimant was indeed not the biological father. Taylor J applied the test for paternity fraud
put forward by Blofeld J in Damages for paternity case.38The court departed from the
Damages for deceit precedent that res judicata concerns were a bar against using the tort of
deceit to address paternity fraud between divorced spouses because it is a fundamental rule
of English common law that a wrongdoer must not profit from their
wrongdoing.39Consequently, the claimant was able to recover both damages for distress
and compensation for loss of earning which he claimed was as a result of the stress of
dealing with the mother's revelation. He was also able to recover additional sums which
he had agreed to pay for the upkeep of the non-biological child as part of the divorce
settlement.40

IS IT POSSIBLE TO USE THE TORT OF DECEIT TO ADDRESS PATERNITY

FRAUD BETWEEN DIVORCED SPOUSES IN KENYA?

Simply put, reproductive rights may have their origins in the theory of reproductive justice
which advocates for women to have the legal right to (1) choose when to have children;(2)
choose which man to reproduce children with ;(3) and choose how many kids to give birth

38
IVF Case [2015] at 46-60
39
B Adoh, Illegality as a defence to negligence in English law (2007): online at
http://ssudl.solent.ac.uk/1313/1/2007 : M Fordham, The Role of Ex Turpi Causa in Tort Law (Sing. J.
Legal Stud. 1998)pgs.238-259(Fordham 1998):online at http://www.jstor.org/stable/24867251: Holman v
Johnson [1775]98 ER 1120[Holman]at 1121per Lord Mansfield : Montefiori v Montefiori [1762] 1Wm BI
364[Montefiori] : Collins v Elantern [1767]95 Eng. Rep 847[Elantern],at 852,per Wilmot LJ: Kirkham v Chief
Constable of the Greater Manchester Police [1990] 2 QB 283[Kirkham]
40
IVF Case [2015] pp 61 -85

7
to.41However, the Constitution of Kenya does not exclude men from having these very
same reproductive health choices through guaranteeing the equal benefit and protection
of the law for all regardless of gender.42Therefore paternity fraud limits the reproductive
rights of married and unmarried men in a manner not contemplated by the
Constitution.43This violation justifies the imposition of civil liability on women who
perpetrate paternity fraud under the tort of deceit in Kenya.

Kenya’s Judicature Act44is the normative basis for the continued application of English
law in Kenya.45The study maintains that Cap 8 doesn’t limit the application of English
common law to the state that it was prior to 27th August 1897.46Instead, Kenyan law can
reflect subsequent changes in applicable English common law principles47such as the use
of the tort of deceit to address paternity fraud.48Finally, subjective notions of public policy
that was a feature of Kenyan law prior to 27th August 2010 are not compatible with the
idea of a supreme Constitution.49 Therefore, the common law public policy of res judicata50
can’t be invoked by a woman, like it was done in Australia,51 to successfully defeat tortious
liability for paternity fraud.

41
Art 12 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW): Art
16 (1)(e) CEDAW that is part of our formal sources of law because of Art 2(6) COK
42
Art 27(1) COK
43
Art 24 COK
44
S3(1)(c) Chapter 8 Laws of Kenya (Cap 8): MN Wabwile, The Place of English Law in Kenya (Oxford
Commonwealth Law J,2003) pg.51-80(Wabwile 2003):
45
Wabwile 2003
46
A Alott, Essays in African Law (London: Butterworths ,1960) pg.31(Allot 1960)
47
AEW Park, Sources of Nigerian Law (London: Sweet and Maxwell, 1963) pg.20-24(Park 1963)
48
Esmail v R [1965] EA 1(SCK) [Esmail]
49
Art 2 COK: Al Ghurair Printing &Publishing LLC v CORD and 2 Ors [2017] eKLR [Al Ghurair]
50
S Ouma, A commentary on the Civil Procedure Act cap 21, (Nairobi: LawAfrica,2010) pg.23-24(Ouma 2010):
S7 Civil procedure code, Chapter 21 Laws of Kenya (Cap 21): Nancy Mwangi T/A Worthlin marketers v
Airtel & 2Ors [2014] KeHC Civ Suit 275 of 2013(Unrptd) [Nancy Mwangi]: ET v Ag [2013] eKLR[ET
Case]per Havelock J: Omondi v National Bank of Kenya & Ors [2001] EA 177[Omondi]: per Kuloba J in Njangu
v Wambugu & Ors [1991] KeHC Cas.No.2340(Unrptd)
51
Magill v Magill [2006] HCA 51[Magill]