Couple battles to verify if man is minor's father

A man is embroiled in a court battle with his ex-wife on whether he should undergo a DNA test to ascertain that he is not the biological father of a child he knows to be his.

High Court judge Aggrey Muchelule directed the man  and the woman to file their submissions in a bid to settle the dispute that has been in the corridors of justice for five years.

At the heart of the battle is the 10-year-old minor who lives with his maternal grandmother and aunt in Kenya. According to court papers, the child's mother relocated to Australia.

The man codenamed KPM sued the minor’s mother codenamed JWK seeking physical custody. He narrated that they had cohabited between August 2012 and February 2014 but they had a love affair before that.

The court heard that the minor was born on April 17, 2012, and given the man’s name. At that time, there was no issue about the paternity of the minor.

KPM and JWK’s love hit the rocks and the two separated owing to irreconcilable differences. Justice Muchelule head that JWK took away the child and eventually relocated to Australia, leaving him with her mother and sister.

In this case, the man moved to the children's court at Milimani. The lower court allowed him to take the minor as the case was being heard.

However, JWK brought a twist by claiming that KPM was not the minor’s biological father. She made an oral argument for a DNA test to determine paternity.

Following the application, the lower court allowed the two to negotiate the matter. They returned to court with consent for a DNA test to be conducted. The court adopted the mutual agreement as an order.

However, the man subsequently changed and urged the magistrate to set aside the order. According to him, the DNA test would intrude on his right to privacy.

The woman now filed a formal application for DNA test that was allowed on July 12, 2019. Court’s ruling indicates that she was to foot the bill of the test.

Aggrieved, the man moved to the high court seeking to suspend the magistrate’s court order. The High Court allowed the application and directed that the two should have the appeal fixed for hearing urgently. Justice John Onyiego issued the ruling on September 26, 2019.

The two cases; the one on custody before the magistrate’s court and the one for DNA test in the High Court remain unheard to date.

Justice Muchelule stated that it was unfortunate that the child's custody dispute remain unresolved five years later. 

"The main cause in the trial court has not been heard, and the appeal has also not been heard. For a dispute relating to a child to remain that long without resolution is a serious indictment both on the parties and on the two courts," he noted.

JWK filed an application to have the appeal fixed for a hearing in 2020 as she was in the country. Her wish was to have the case settled before she returned to Australia. It however did not happen.

Justice Muchelule stated that the more the file remained in court, the more the two continue to incur the cost of keeping the case alive.

"It is the duty of the court to ensure timely disposal of proceedings at a cost affordable by the parties. The longer the dispute lingers on in this court the more expensive it will be to the parties," argued Muchelule.