[2023] KEHC 25995 (KLR)

BAY v ABG & another (Civil Appeal E019 of 2021) [2023] KEHC 25995 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25995 (KLR)

Republic of Kenya

In the High Court at Garissa

Civil Appeal E019 of 2021

JN Onyiego, J

November 17, 2023

Between

BAY

Appellant

and

ABG

1st Respondent

LMI

2nd Respondent

(Being an appeal against the judgment of the Senior Kadhi, Hon Fahad Ismail delivered on 25. 03. 2021 in the Matrimonial Cause No. 13 of 2021 at Kadhi’s Court at Daadab)

Judgment

1. Vide an undated plaint filed in the court on 28. 01. 2021, the appellant moved the trial court seeking for orders that a DNA test be carried out to determine whether he was the biological father of the minor, A. He had averred that the 2nd respondent and him got married in the year 1993 under the Islamic Religion wherein their marriage was blessed with seven children but subsequently, they separated upon their marriage breaking up. He contended that after the separation, the 2nd respondent failed to observe the three months mandatory eddah period. That immediately thereafter, he discovered that the 2nd respondent was expectant and so he desired to know whether the said minor, A was his biological child or not.

2. The trial court upon reading the plaint directed as follows:i.That the parties provide the court with DNA test results from KEMRI Headquarters in Nairobi.ii.That KEMRI Headquarters in Nairobi to conduct tests within 21 days and furnish the court with results to determine the pending matter.iii.That each party to bear 50% the costs of the DNA test.

3. The 2nd respondent denied the allegations by the appellant thus stating that after she delivered their last born, the appellant suffered impotence hence failed to offer or meet her conjugal rights. That the appellant remained violent despite her taking care of him by providing necessary medication to cure his situation.

4. It was her further evidence that the matter was taken before Sheikh Mohammud Sigale, registrar of marriages who heard the case and thereafter granted and dissolved the said marriage. Further, that prior to the dissolution of the marriage, a medical test was undertaken at Medina Diagnostics Health Center in Hagadera where it was confirmed that the 2nd respondent was not pregnant. As a result, this development led to the said registrar annulling the marriage between the appellant and the 2nd respondent consequences whereof the 2nd respondent forfeited her dowry.

5. The 2nd respondent further stated that after leaving the appellant, she got married to one Mr. MA for a period of fifteen months and thereafter left him for the 1st respondent herein. That the same only happened after a one-year separation from her second marriage to Mr. MA.

6. The trial court upon considering the facts and the law as presented before him, reached a determination that the divorce between the appellant and the 2nd respondent was valid as per the Islamic Law. On the the strength of the DNA report dated 03. 03. 2021, the court stated that the legal and biological father of A was the 1st respondent.

7. The appellant being dissatisfied with the finding of the trial court filed the appeal herein via a memorandum of appeal dated 18. 11. 2021 wherein the following grounds were cited:i.That the appeal is on the issue of paternity only.ii.That the Honourable Kadhi erred in law and facts by failing to order that the plaintiff who was illiterate be represented during the process of DNA testing which eventually disadvantaged him.iii.That the Hon. Kadhi erred in law and facts by failing to find that the DNA report ought to have been produced by a qualified registered medical officer.iv.That the Hon. Kadhi erred in law and facts by requiring that the parties should undergo and obtain the DNA results instead of directing the order to the KEMRI Labs thus disadvantaging the plaintiff who is illiterate.

8. Reasons wherefore, this Honourable Court was urged to:i.Allow the appeal herein.ii.Order for a fresh DNA test to be conducted.iii.That this Honourable Court be pleased to issue any other orders it deems fit; andiv.Costs be in the cause.

9. The court directed that the appeal be canvassed by way of written submissions. The appellant filed his submissions in person on 6th March 2023 thus submitting that if this Honourable Court fails to grant his prayer for a fresh DNA test, then the same would seriously prejudice him as it would deny him an opportunity to settle the matter. He contended that the rights of the child herein and particularly an opportunity for the minor to know his biological father is at stake. He placed reliance on the case of MKK v LGI [2021] eKLR where the court held that in determining children matters, the court must of necessity weigh the competing right(s) of the child’s best interest as the cardinal principle as set out in art 53(2). He urged that this Honourable Court be pleased to allow the appeal as prayed.

10. The respondents represented by the firm of Bashir & Associates Advocates filed their submissions dated 12th May 2023. Counsel coined the issue for determination as to whether this Honorable Court should order a repeat of the DNA test as prayed by the appellant. Counsel stated that, all matters pertaining to children are governed by the principle of best interests of achild as was enumerated in the case of MAA v ABS (2018) eKLR. It was contended that the present appeal is not in the best interest of the child but of the appellant as the same was made in bad faith and a clear deliberate attempt to obstruct the course of justice. It was urged that at the time of the dissolution of the marriage between the appellant and the 2nd respondent, a medical test was undertaken at Medina Diagnostics Health Center in Hagadera where it was confirmed that the 2nd respondent was not pregnant.

11. The 2nd respondent stated that despite there being no opportunity for the appellant and her to conceive A, the trial court indulged the appellant by ordering for a DNA test which later proved that the minor was not fathered by the appellant. It was further submitted that the 2nd respondent got married to the 1st respondent under the Islamic Law which marriage was blessed with one issue A, almost one year and seven months after the appellant and the 2nd respondent had divorced. In buttressing the point that the appellant did not prove to this court that he had proved his case to the required standards that a repeat of DNA was necessary, reliance was placed on the case of Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR where it was held that he who alleges must prove.

12. This court was urged to find that a repeat of a DNA test would act contrary to the best interest of the minor as the same may lead to creation of discomfort between the 1st and the 2nd respondents whom the minor has since known to be his parents. The 2nd respondent contended that the appeal herein is not only vexatious but also an abuse of the court process and therefore the same ought to be dismissed with costs.

13. I have considered the appeal, proceedings before the trial court together with the impugned judgment. I have also considered both submissions by the parties herein. The main issue for determination is whether an order for a fresh DNA testing should issue.

14. The basic feature of this dispute is founded on the fact that the appellant and the 2nd respondent were once married and thereafter divorced. The appellant urged that the 2nd respondent married the 1st respondent before the three months mandatory eddah period. In opposition, the 2nd respondent opposed the allegations by the appellant by submitting that after leaving the appellant, she got married to one Mr. MA for a period of fifteen months and thereafter left him for the 1st respondent herein.

15. The above notwithstanding, the trial court ordered that a DNA test be conducted and the results were to the effect that the appellant was not the biological father of the minor herein.

16. The appellant stated that due to the fact that he is illiterate, he did not understand the whole process since according to him, there was collusion between the respondents and the hospital to reach a finding that the 1st respondent was the biological father of the minor. Of importance to note is the fact that despite the appellant’s allegations, he did not provide evidence to support his allegation save for the claim that he saw the doctor speak with the respondents in a language that he could not understand.

17. Additionally, that after the DNA test had been carried out, he visited the Lancet Laboratories where he was informed that the said results had already been sent to court. In his own wisdom, he was convinced that there must have been collusion between the respondents and Lancet staff and that is why he could not access the results. It is trite that the burden of proof squarely lay on him as he who alleges, must thus prove pursuant to Sections 107 to 109 of the Evidence Act which provides as follows:“107(1)Whoever desires any court to give judgment as to the legal right and liability dependant on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies with that person.108. The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on the other side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact lie on any particular person.”

18. The above notwithstanding, the 2nd respondent from her submission stated that she got married to the appellant in the year 1993 and were blessed with seven children. She further stated that, upon their marriage hitting a rock, they engaged elders before whom the appellant sought that a pregnancy test be carried on the 2nd respondent and the same was done on 05. 09. 2014 at Medina Diagnostics in Hagadera which results turned out negative. That the same was evidenced by the annextures attached as court documents.

19. She further submitted that after one year of separation with the appellant, she got married to one Mr. MA with whom they lived together for fifteen months and thereafter separated without getting a child. That one year after her marriage broke with Maow, she got married to the 1st respondent her current husband who is also the father to the child now the subject of these proceedings; It is worth noting that these chronology of events by the second respondent was not challenged by the appellant either in evidence or pleadings before the trial court.

20. This court is fully alive to the fact that Under Islamic law, divorce proceedings attract certain consequences sanctioned by Islamic law. Among such consequences is the payment of dowry, if outstanding, payment of alimony or maintenance otherwise known as mutah under Islamic Law and eddah, a three-month’s period a divorced woman is supposed to observe after divorce under the care of her former husband to ensure that the divorced woman does not remarry another person while pregnant from her former husband or somebody else.

21. From the above and as already stated, a simple arithmetic shows that the minor herein was born way after the three months mandatory eddah period. The subject herein was born after more than two years from the time the appellant and the 2nd respondent separated. Besides, the appellant having sought for the DNA testing, the results returned showed that indeed he was not the biological father of the minor. In my humble view, ordering for the DNA testing was the best way out for the appellant to know whether he was the biological father of the minor. In the Indian case of Re G (Parentage blood sample) 1997 1 F.L.R. 360 cited in the case of Rohit Shekhar v Narayan Ditt Tiwari & Another on 27 April 2012, High Court of Delhi IA no 10394/2011 in CS(OS) no 700/2008, it was stated;“Justice is best served by truth. Justice is not served by impeding the establishment of truth. No injustice is done to him by conclusively establishing paternity. If he is the father, his position is put beyond doubt by the testing, and the justice of his position is entrenched by the destruction of the mother's doubts and aspersions. If he is not the father, no injustice is done by acknowledging him to be a devoted stepfather to a child of the family. Justice to a child, a factor not to be ignored, demands that the truth be known when truth can be established…”

22. The decision in Re G (Supra) is relevant and applicable in the instant suit in that there was need to establish the truth about the paternity of the child in a situation where a mother (and conventional wisdom has it that mothers are the only ones best placed to know the paternity of a child) denies that a particular man is the father of the child and the man insists to be the father.

23. Having in mind that the trial court already ordered for a DNA test as the same was the sure way of determining who the rightful father of the minor was, I have not sufficiently been persuaded to disbelieve the authenticity of the DNA result. There is nothing placed before the court to suggest that the results were obtained through fraud, misrepresentation of facts and through undue influence. Obviously, DNA is the surest way of determining paternity conclusively. See PKM v SPM & another, [2015] eKLR where it was stated:“If the applicant denies paternity what other quicker way to resolve the dispute than to undergo a DNA test.”

24. It therefore follows that the objective of DNA testing which was conducted upon the appellant’s request was achieved or served. The appellant did not provide this court with viable reasons to upset the finding of the trial court as it was correctly determined that he was not the biological father of the minor herein. I also do not find any best interest of the child that will be served by ordering a second DNA test. If anything, the order sought if granted will subject the child to unnecessary psychological trauma which then acts in breach of Article 53(2) of the constitution which underscores the best interest principle of a child as paramount in every decision taken concerning a child. The appeal herein is merely a fishing expedition which lacks factual foundation.

25. As a consequence of the above finding, it is my humble holding that the appeal herein is bereft of any merit and the same is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF NOVEMBER 2023J.N.ONYIEGOJUDGE