Child's name not enough basis for DNA test, court rules

"What's in a name?" "A rose by any other name would smell as sweet." William Shakespeare uses this line in his play 'Romeo and Juliet' to convey the message that what someone is called does not change who they are.

That seems to be the logic a judge applied in a child upkeep case when he ruled that the court cannot presume that a child was born out of wedlock because of their name.

Justice John Onyiego argued that because the child bore a Luo name yet the father was Kamba was not enough reason to order a DNA test.

Justice Onyiego made the ruling in a child upkeep case in which a man code-named DMK wanted a minor subjected to a DNA test on suspicion that the child was not his.

The child in question, the court heard, is named after his mother's brother.

DMK argued that his wife had played games with him and got the firstborn out of wedlock and it was possible she could have got the lastborn too out of wedlock.

DMK argued that his wife codenamed FJM ought to have followed Kamba traditions when naming their lastborn. He asked the court to order a paternity test to settle the matter.

In her reply, FJM told the court that she named the child after her brother and that her estranged husband knew about it.

Justice Onyiego agreed with the magistrate's court that the child should be presumed DMK's as he was born during the marriage.

"I do agree with the magistrate that not giving the child a Kamba name, the appellant's tribe, is quite trivial in my opinion. It does not form a concrete basis for a DNA examination to be ordered," said Justice Onyiego.

In the case, DMK argued that he separated from his wife in 2017 following irreconcilable differences.

After their separation, FJM filed a child maintenance case for their four children. She asked the court to order DMK to pay Sh38,833 per month.

She stated that he was a shylock and a private process server.

The judge heard that the man was paid Sh1.36 million for wrongful arrest and detention in 2017 but he only shared Sh97,000 with his estranged family.

In his reply, the man countered that he had paid debts worth Sh300,000, given the children and his former wife Sh247,000 and the balance of Sh750,000 he had bought land and built a house.

In a rejoinder, he told the court that he was not in a position to pay Sh 8,000 as ordered by the magistrate's court. Instead, he offered to pay between Sh 3,000 and Sh 4,000 month.

DMK stated that he was a farmer and had no regular income.

However, Justice Onyiego said that parental responsibility was not meant for those earning only. The judge ordered he should pay Sh 8,000 as ordered by the lower court.

"Is the amount of Sh 8000 excessive in the circumstances?... Courts do not make maintenance orders only against parents in formal employment. Given the rate of inflation since the impugned orders were made, I do not find the amount excessive," the judge ruled.