[2022] KEHC 13407 (KLR)

DKN v JM (Civil Appeal E001 of 2022) [2022] KEHC 13407 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13407 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E001 of 2022

TW Cherere, J

October 6, 2022

Between

DKN

Appellant

and

JM

Respondent

(Being an appeal from Ruling and Order in Nkubu ELC NO. 101 OF 2019 by Hon. E.M AYUKA (SRM) on 09th December, 2021)

Judgment

Background 1. By a plaint dated November 25, 2019 filed on November 29, 2019,respondent filed Nkubu ELC No. 101 of 2019 as against the appellant claiming to be Appellant’s son and thereby seeking an order to Appellant to give him a portion of his land No. Nkuene/ngónyi/xxxx or No. Nkuene/ngónyi/xxxx.

2. By a statement of defence dated and filed on January 6, 2020, Appellant denied that Respondent was his son. He similarly denied his claim for a portion of his land and urged that the suit be dismissed.

3. Subsequently, by a notice of motion dated and filed on May 27, 2021,respondent sought an order for DNA between him and the Appellant to determine if respondent wasappellant’s son.

4. Appellant opposed the application by his replying affidavit sworn on June 28, 2021and filed onJune 30, 2021.

5. The learned trial magistrate after hearing advocates for both parties by a ruling dated December 9, 2021made an order that DNA test be conducted between the parties to determine if Respondent is appellant’s son.

6. Aggrieved by the ruling and order, appellant on January 4, 2022 filed the memorandum of appeal dated January 3, 2022 raising 3 grounds that:1)The order for DNA is tantamount to intruding on appellant’s bodily security, integrity and right to his privacy2)The prayer sought by respondent was unconstitutional

3. It was not necessary to carry out DNA test to determine a land dispute between the parties

7. The appeal was canvassed by way of written submission which both parties dutifully filed.

Analysis and Determination 8. In carrying out its mandate, an appellate court must reconsider the evidence before it, evaluate it and draw its own conclusions. I have considered the appeal in the light of pleadings on record, the record of appeal, submissions and cited cases.

9. The law on the topic of compulsory blood or DNA testing in paternity disputes, which is also partly an issue in the Petition herein, 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 interest and ordered DNA testing, with regard to non-consenting adults the jurisdiction has been left hazy.

10. In MW v C [2005] eKLR, the court ordered DNA testing on the basis that it had been established that there was a likelihood that the Petitioner was the father of a child. The parties in the case were engaged in maintenance proceedings. (Emphasis added)

11. In HCK v EJK[2008] eKLR, 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 claiming paternity and the one claiming non-paternity. (Emphasis added).

12. The court stated and held as follows:“No reasonable court will order for 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 therefore be 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”. (Emphasis added)

13. In other cases, courts have declined an order for DNA testing on the grounds that it would go against the principle against self- incrimination (See PM v JK [2010] eKLR) and that it was a violation of the non-consenting adult’s rights to bodily integrity and privacy (See SWM v GMK [2012] eKLR, RK v HJK &another [2013] eKLR and RMK v AKG &another[2013] eKLR).

14. From case law, it is trite that a DNA test will not be ordered unless there are clear circumstances that justify the making of such an order. A party such as the Respondent, seeking an order for DNA testing must demonstrate, by evidence, strong facts linking him to the appellant.

15. In my considered view, it is not sufficient for the respondent to plead, as he has, that he is a biological son of the Appellant. Such a pleading per se is not prima facie evidence linking respondent to the appellant as to justify an order for DNA testing.

16. From the record, it is apparent that the learned trial magistrate appreciated that the onus to prove the factual foundation in support of the application for DNA testing was on the Respondent and that it touched on the constitutional rights of the Appellant. In that regard, the learned trial magistrate stated as follows:“I find that in the circumstances of this application, the onus is upon the applicant to lay a firm legal and factual foundation for his case as ordering DNA testing is not a mere procedural matter but is substantive enough given that an individual’s constitutional rights may be limited through such testing.”.

17. In the court’s core role to determine disputes, courts often deploy methods of compulsion not necessarily to get to the truth but to help determine disputes fairly. In all instances though, the party seeking the court’s assistance must lay a firm legal and factual foundation for his case. It is not different where DNA testing is sought. In the case of DNA testing the basis must be laid even where a child is involved, as ordering DNA testing is not a mere procedural matter but is substantive enough given that an individual’s constitutional rights may be limited through such testing. (See D N M v J K[2016] eKLR).

18. In the absence of any evidence linking the respondent to the appellant, I find that the order for DNA testing only for the reason that Appellant did not challenge the fact that he had given land to his children to the exclusion of the Respondent whom he disputed was his child was made prematurely.

19. In the end. I find that this appeal has merit and it is allowed in the following terms:(1)The order made in the ruling dated December 9, 2021directing that a DNA test be conducted between the parties herein to determine if respondent is appellant’s son is hereby set aside and substituted with an order dismissing the notice of motion dated and filed on May 27, 2021 with costs to the appellant.(2)This matter shall be heard by another magistrate other than Hon. E.M AYUKA (SRM)(3)respondent shall bear the costs of this appeal

DATED IN MERU THIS 06TH DAY OF OCTOBER 2022T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Kimathi for Kimatha Kiara & Co AdvocatesFor Respondent - Ms. Gachohi for G.M.Wanjohi & Mutuma & Co. Advocates