“Go to hell!

I am not your father With at least 10 decided cases, discuss critically the question
pertaining DNA and the position.

The issue pertaining DNA is quite sensitive as it confers a great responsibility on the alleged father
and should therefore be conducted in a manner that strikes a balance between the interests if the
alleged father and also the best interests of the child, which, in any case ought to remain paramount.
This therefore brings out the issue of parental responsibility. Parental responsibility refers to the
rights and obligations that a person called ‘parent’ has over a child. It should be noted that a person
can obtain this form of responsibility biologically, legally, on contractual basis or through
acquisition which can as well be referred to as Loco parentis. Biological parental responsibility is
where the blood of the parent runs through the veins of the child. Where the question of DNA
arises, this is where the mother alleges that a man is the father and the court uses the powers granted
to it to ensure that paternity is proven scientifically through conducting the DNA test.

An obiter dictum in the constitutional and human rights case between M and J showed that the
law on the topic of compulsory blood or DNA testing in paternity disputes is yet to be completely
and satisfactorily developed locally. There is no express legislative framework, which specifically
regulates the position in civil cases. The few judicial pronouncements on the topic do not appear
unanimous in approach or principle. Whereas in relation to children, the courts have occasionally
been quick to act in the child’s best interests and ordered DNA testing with regard to non-
consenting adults the jurisdiction has been left hazy.

It is clear in accordance to Article 53[2] of the constitution of Kenya 2010 that the child’s best
interests are of paramount importance in every matter concerning the child. But it is also important
to take cognizance of the fact that Article 28 of the same states that every person has inherent
dignity and the right to have that dignity respected and protected. Article 31 also provides for the
right to privacy. This therefore shows that in as much as the best interests of the child are
paramount the rights of the alleged father should be protected as well and this has seen to prevail
in various judicial pronouncements.

To ensure a balance is stricken, the court ensures that the person alleging provides sufficient
evidence proving that there is a nexus between the mother and the alleged father of the child. The
burden of proof lies with the person that alleges paternity or non-paternity. Section 107, 108 and
109 of the evidence acts confers burden of proof on he who alleges. Section 107 states that,
‘whoever desires any court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist.’ Sub section 2 goes on to state
that ‘when a person is bound to prove the existence of any fact it is said that the burden of proof
lies on that person.’ This place the person alleging in the onerous position to establish a link
between her and the alleged father that would facilitate conception of the child in question.

In HCK v EJK (2008) the court stated that prior to ordering any DNA testing even where a child
is involved there was need to establish a link between the person paternity and the one claiming
non-paternity. The court stated and held as follows, “No reasonable court will order a DNA test
against a person in circumstances which do not appear to link the person with the child
intended to be protected. There must be therefore facts strongly linking the respondent to
the child. Otherwise an applicant will look at the richest person among those she generally
associated with and claim him to be the putative father of her child to thereby entitle her to
seek a DNA test against him.” This therefore seals any loophole that would lead to the violation
to the right of bodily security and integrity and as well as the right to privacy that the person
claiming non-paternity is entitled to enjoy. The nexus between the person claiming paternity and
the person claiming non-paternity is therefore the most crucial evidence needed to be established
by the person alleging paternity.

In P.M v J.K the court simply declined an application for DNA testing on the basis that it would
go against the principle against self-incrimination. This was notwithstanding the fact that a child
was involved. This shows that the court understands the magnitude of parental responsibility and
observes the principles of natural justice even when listening to disputes on paternity. The court
protects the interests of every party even though the interests of the child are paramount. The law
provides for the principle against self- incriminating evidence. This ensures that the proceeding is
a fair hearing. Article 50 of the constitution states that every person has the right to have any
dispute that can be resolved by the application of law decided in a fair and public hearing before a
court or, if appropriate, another independent and impartial tribunal or body. Sub article 2 of the
same goes on to say every person has a right to a fair trial and this includes the right to refuse to
submit self-incriminating evidence.

This shows that the court uses its own discretion to determine if DNA testing is necessary or not.
In MW v KC [2005] the court set out the following parameters for the test,
 1. Their application is in good faith.
2. There are good grounds for making it, and sufficient cause is shown
3. Thirdly, that the application is not actuated by malice or designed to economically exploit
or embarrass or otherwise is an abuse of the court process.

Justice GBM. Kariuki was satisfied that the applicant in this case had proven these grounds, hence
he ordered the test to be done and that both parties were to bear all the costs. In every application
for DNA testing presented before the court, these grounds ought to be observed to ensure that the
rights of all parties are protected. There have been situations where women use DNA testing for
malicious purposes, which is against the law as no provision should be used as an engine to
exercise any form of fraudulent or malicious behavior.

In Re A [1994] 2 FLR 463, CA a woman W had sex with three men including A, and
subsequently gave birth to a child. She claimed maintenance against A who denied he was the
father and the court ordered a DNA test. He refused to co-operate unless the other two men were
tested as well. The judge accepted his argument as reasonable. Allowing w’s appeal, the court of
appeal the court of Appeal said a court could genuinely infer A’s refusal that he was in fact the
father; such an inference from a man’s non-co-operation was virtually inescapable, said Waite L J
unless there were clear and cogent reasons for his refusal. He was therefore ordered to provide
maintenance. Paternity and maintenance are intertwined in the sense that the courts’ ultimate
decision can be influenced by the nature and parentage of a child.

The above precedent shows that though the person claiming non-paternity has the right to refuse,
there must be valid reason to do so as refusal may be presumed by court as escaping parental
responsibility. So, log as the party claiming paternity gives sufficient evidence corroborating her
claim, and it is not based merely on speculation or malicious intent as to embarrass the other party,
then there should be no reason to refuse to undertake a paternity test. The nexus between the two
parties is as well important. The morality of the person claiming paternity should not be used as
an argument before the court as can lead to infringing the rights of the mother of the child in terms
of her right to privacy and as well as her inherent right to human dignity as provided for in the
constitution of Kenya, 2010 and as provided for in the United Nations Declaration on Human
Rights. [UNDHR].
If the person trying to prove parental responsibility or affiliation is above the age of majority, the
courts are most likely to decline to issue an order for the DNA test this can be seen in the case of
Hon. John Keen in which Justice Majanja dismissed an application against him by a 32 year old
woman, Ruby Karimi, seeking to have him subjected to medical tests to confirm if he is the
biological father. Justice Majanja ruled that such an order would be an invasion of his privacy and
that she had not shown enough grounds for grant of such an order, further stating that it would
have little probative value on the main petition.

Hon Kembi Gitura also got similar also got similar reprieve from the courts in a case in which Mr.
Roy Kiarie 41 years, had petitioned the court to order Mr. Gitura to undergo a DNA test, so as to
prove a connection between himself and Hon. Gitura to necessitate such an order would violate
the respondent’s rights. From this, it can be seen that the applicant is a child, the court will allow
the application to prove paternity, but if the applicant is an adult or not suffering from special
needs and over 25 years of age, the court will insist they prove their case without means of DNA
testing, which would be seen as a breach of the respondent’s rights.

In the case Francis Cheptoo v Consolata, section 94 of the children’s act provides guidelines that
the court takes into consideration in light of an order of maintenance. Children born out of wedlock
have paternity maintenance rights. In section 24[3] of the Children’s Act it provides that where a
child’s father and mother were not married to each other at the time of the child’s birth and have
not subsequently married each other. In relation to this is the precedent, JK cradle [the children
fund] Millie and Gao v AG [2006]. Those were the precisions before the promulgation of the
constitution in 2010. The plaintiff stated that these precisions were discriminatory in nature
because children born out of wedlock were disadvantaged compared to children whose fathers
were married or subsequently married their mothers. The plaintiff argued that the law should
accord equal treatment to her and those children whose parents were married by placing the
responsibility on both the father and the mother at the time of birth of children.

The case of Zak and another v the Attorney General the same issue on the discrimination of the
provisions 24[3] and 25 was brought before the court. The petitioner wanted the provisions to be
declared unconstitutional it was held that the provisions should be declared null and void due to
their discriminatory nature. Article 2[1] of the international convention on the rights of the child
states that state parties shall respect and ensure that the rights set faith in present convention to
each child within their jurisdiction without discrimination of any kind, irrespective of the child or
parent’s or legal guardian’s sex, language, race, nationality, ethnicity or social origin. Article 2[2]
then provides state parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment or beliefs of the child’s parents, legal guardians
or family members.

It is therefore clear that in many precedents the court considers the best interests of the child have
remained paramount and in many instances the court opts to subject the party that’s claiming non-
paternity to the DNA tests in order to determine the matter in a manner that ensures that the
interests of the child are safeguarded. This is seen in the case ZW V MGW [2014] the judge
ordered then the respondents to undergo the test at the government chemist citing the child’s best
interests as the topmost consideration as is in section 4 of the children’s act. However, where the
person proving parental responsibility or affiliation is over the age of majority, 18 years in Kenya,
the courts likelihood to decline issuing an order for DNA test is very high.