[2013] KEHC 5547 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 18 OF 2013

BETWEEN

RMK …………………......................................................PETITIONER

AND

AKG ………………………….............................. 1ST RESPONDENT

ATTORNEY GENERAL ...................................... 2ND RESPONDENT

RULING

By a petition dated 18th January 2013, the petitioner moved the court for the following reliefs;

A declaration that the 1st respondent is the petitioner’s biological father.

A declaration that the 1st respondent refusal to acknowledge the petitioner as his son and his continuous denial of the petitioner’s use of his name, property and accessibility to the same is unconstitutional.

An order compelling the 2nd respondent to change the petitioner’s documents to include the 1st petitioner family name of KEMBI

General damages

Costs of this petition

Any other relief the court may deem fit to grant.

The petitioner, an adult, claims that he is the son of the 1st respondent, from a union between the respondent and one RNK. He states that he grew up in the custody of his mother until he became of age when he sought information of his paternity and the 1st respondent was named as his father which fact the 1st respondent has not rebutted or denied. He alleges that AKG has also refused to acknowledge paternity formally to the petitioner and continues to withhold such acknowledgement despite demand.

The application before me today is a Notice of Motion made under sections 1, 1A, 1B, 3and3A of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) dated 7th June 2013 and the petitioner seeks the following orders;

The 1st respondent herein be compelled to take a DNA test in any government hospital or any other hospital agreeable upon by both parties to ascertain paternity.

The DNA test/result be forwarded to the Honourable Court as evidence to determine the issue of paternity.

The costs of this application be paid by the respondents.

The affidavit supported by the petitioner’s own affidavit sworn on the 7th June 2013 in which he states as follows;

That I am the petitioner herein and competent to swear this affidavit.

That I filed this matter seeking various orders among them a declaration that the respondent is my biological father.

That the 1st respondent in his reply has denied paternity and that issue alone touches on the core of this petition.

That a DNA test will subsequently resolve and or shed light to the petition and save the court’s time.

That a DNA test will ultimately be required for scientific evidence in this petition and its only conclusive way of showing paternity.

That it is for the benefit of the court and the parties that a DNA test is done to resolve the matters of paternity.

That I am ready and willing to surrender myself or any samples that will be required for the test to conclusively settle this matter.

That I am taking this petition very seriously because the petitioner has raised very serious issues touching onto my integrity and intentions in the petition.

That what is deponed to herein is true to the best of my knowledge, information and belief.

Learned counsel for the petitioner, Mr Gikunda, urged the court to grant the orders on the ground that the denial of the 1st respondent to acknowledge paternity was not denied or challenged and that petitioner’s fundamental rights to dignity, family and culture were violated as a result. He referred to several provisions of the Constitution including Article 27(5) which prohibits discrimination, Article 28 which protects dignity, Article 45 which recognises and protects the family and Article 35 which entitles the petitioner to information. Counsel submitted that the grant of the application before the petition is heard and determined will at least assist the court in resolving the issues before it.

The 1st respondent has opposed the application on several grounds. First, that the petition does not disclose any reasonable course of action as the declarations sought cannot in reality be granted. Second, the application is not founded on any substantive law that has been disclosed. Ms Wanyoike, learned counsel for the 1st respondent, submitted that the application is based on the provisions of the Civil Procedure Actwhich are merely procedural and do not confer substantive rights. Third, the grant of the order will violate the 1st respondent’s rights and nothing has been placed before the court to persuade the court to override the 1st respondent’s rights by ordering a DNA test.

I have considered the petitioner’s deposition and the parties’ respective oral and written submissions. As this is a matter for the enforcement of fundamental rights and freedoms, I must consider the substance of the application rather than the form of the application or the provision under which it is brought. The issue for consideration is whether a basis, legal or factual, has been laid to enable the court order the 1st respondent to undergo a DNA test to establish paternity at an interlocutory stage.

I have taken the trouble to set out the contents in the supporting affidavit at paragraph 4 above and it is abundantly clear that the assertions therein are threadbare. Apart from the petitioner’s own bland assertions, there is nothing to connect the petitioner and the 1st respondent that would discharge the burden of persuading the court to permit an intrusion of the 1st respondent’s rights. In the case of SWM v GMKNairobi Petition 235 of 2011 (2012)eKLRI stated as follows, “[21] Ordering the respondent to provide DNA for whatever reason is an intrusion of his rights to bodily security and integrity and also the right to privacy which are rights protected under the Bill of Rights. The petitioner bears the burden of demonstrating to the court that the right she seeks to assist or vindicate and which the court would consider as overriding the respondent’s rights.”

The petitioner has stated that the court should order a DNA test nevertheless as the facts in the deposition have not been challenged. As I have observed, the burden remains on the petitioner to establish by the pleadings and evidence sufficient nexus between him and the respondent in order to persuade the court to grant the orders. In this case there is no evidence to support such a course.

In view of lack of a material basis to make the order sought in the Notice of Motion dated 7th June 2013, it is hereby dismissed with no order as to costs.

DATED and DELIVERED at NAIROBI this 23rd July 2013.

D.S. MAJANJA

JUDGE

Mr Gikunda instructed by Gikunda Miriti and Company Advocates for the petitioner

Ms Wanyoike instructed by Kairu and Mcourt Advocates for the 1st respondent