The woman explained that they had a pact that since the man could not sire, she was to sleep with their friend.

A couple’s marriage fell apart and a subsequent court case for shared parental responsibility filed by the woman has exposed their dark secret. The two married in 2001, had two children - 12 and nine - and lived a blissful union until their marriage hit the rocks two years ago. On October 17, 2018, the estranged wife filed a child maintenance case seeking the man’s financial contribution in raising their children. However, the man, apparently not keen to give her money, chose to ask for full custody of one of the children, so that each of the parties could raise a child.

To counter this demand, the woman dropped a bombshell. She disclosed that none of the children had been fathered by the man. The man demanded a paternity test. However, the woman, identified in court papers as MNW, explained that they had a pact that since the man, code-named LNN, could not sire, she was to sleep with their friend. The man disputed this, saying he believed the first child born in 2008 was his. The second was born in 2011 after they had separated, he claimed. But the woman rejected this narrative, saying she was ready for a DNA test to prove the estranged husband was not their father.

“We got married in 2001, but could not get a child because the respondent was found to have a medical condition. Later in 2006, we agreed to get a child through his friend, which we did in 2008, GWN, and a second child in 2011 (FWN) and the issue was kept as a secret. It was unnecessary for the respondent to seek a paternity test, which he knew the truth,” she said.

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Access firstborn

MNW asked the court to order that she accesses the firstborn - GWN - who was with the father, for a paternity test. This was to facilitate collection of a sample for comparison with a test done on the second child, FWN. She said although the children bore the man’s name, he was not their biological father. To prove her claim, she demanded that the minors be subjected to a deoxyribonucleic acid (DNA) test. The tests confirmed her claims, as the DNAs never matched. The woman, however, wanted the court to order that they share out parental responsibility.

In the case now before High Court Judge Roselyn Wendoh, after the DNA was done, the court ordered the woman to shoulder Sh52,000 as the cost for the tests. She went back lamenting that her estranged husband wants to start execution proceedings against her. LNN filed a lengthy affidavit detailing that he believed that the first child was his but the second one was born when MNW left home. He claimed that his estranged wife had initially insisted that both children were his, but he had doubts. The court heard that the man asked for a DNA test and that is when she filed a reply indicating that he was not the father of both children.

“Had the applicant (MNW) not insisted that I was the father of the subjects, the issue of DNA would not have arisen, and she was properly condemned to bear the costs,” LNN argued.

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The woman told the court that the man knew the children were born out of an arrangement between them and a friend after doctors found he could not sire his own. She denied that the children were born out of wedlock, adding that her estranged husband did not have to seek a paternity test, having known the truth. The woman asserted that she had also told the truth by pleading in her defence that the children were not his biological children. She claimed he was the one who insisted on a DNA test and the results then confirmed that she was telling the truth all through.

The woman said she was, therefore, the successful party and costs should have been awarded to her. Justice Wendoh dismissed LNN’s application to block her estranged husband from recouping the DNA cost, saying she had not proven she would suffer any loss if he went after her. The judge also condemned her to pay costs.

“In his affidavit in reply to the application, the respondent went ahead and exhibited a bank statement from Co-operative Bank, which indicates that he earns a salary and is not an impecunious man and would not be unable to refund the decretal sums in the event the appeal succeeds. I find that the applicant has not demonstrated that she will suffer any loss if an order of stay is not granted,” she ruled.