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Former MP ordered to re-take DNA test in paternity case

By By Kurian Musa | Mar 21st 2014 | 3 min read


NAIROBI, Kenya: A citizen's right to know his parents overrides the constitutional right of the dignity and infringement of privacy of the parties concerned, the court has said.

Former Gatundu North MP Patrick Muiruri was on Friday ordered by Mr Justice Isaac Lenaola to within 14 days take a DNA test at the government chemist at Kenyatta National Hospital and that he bears the cost of the test equally with Joyce Wanjiku, the mother of the child he is alleged to have sired.

The former MP had claimed that he had been forced to undergo DNA testing and that the respondent (Childrens Court at Nairobi) would further violate his rights to dignity but the High Court ruled that parental care can only be an obligation if paternity can be ascertained and a way of doing so is by DNA testing.

Muiruri is involved in a case at the children’s court contesting that he is not the father of the said child and that no evidence had been tendered to establish that he fathered the child.

The senior principal magistrate at the Children’s Court in Nairobi had on February 11, 2012 directed that the former legislator take a paternity test at the government chemist, Kenyatta National Hospital to ascertain if he was the child's biological father.

But Muiruri was not happy with the directive and filed a case at the judicial review of the High Court seeking fresh orders and arguing that the lower court was unreasonable, and breached his constitutional rights.

The judgment took account to his submissions that he had availed himself for a DNA testing twice; in December 7, 2012 and January 7, 2013, whereby Joyce Wanjiku did not avail herself.

Mr Muiruri had told the High Court that the lower court was intimidating him and harassing him to concede to claims that he is the father without considering all matters.

Despite his Lawyers mounting sombre arguments that he had suffered loss, damage, mental anguish and stress, Justice Lenaola ordered that the best way to end the dispute was for Muiruri to take the DNA test.

In a matter where paternity of a child is an issue, the court held that DNA is a sensitive matter to both parties.

“One view held by some judges has been that while modern science has the means of ascertaining the paternity of a child, such scientific advances and tools result in invasion of the right to privacy of an individual and may be prejudicial to the parties and have devastating effects on the child,” said Lenaola.

However, Justice Lenaola held that there must be a balance between right to privacy and right of child to know parents. “It’s a delicate balance…the court must reach the truth,” he said.

The court established that for the first year, the former legislator provided financially for the infant. Upon birth, he purchased presents for the child and contributed Sh 20,000 every week.

“I have not seen any express denial of the facts and the petitioner (Wanjiku) establishes an arguable case,” the judge said.

The judgment comes in the wake of heated arguments surrounding the ‘marriage bill’ awaiting Presidential assent.

“I am aware that the petitioner (Muiruri) has argued that he has presented some DNA test results. However having found that the best interest of the child is the paramount principal in all matters involving children and noting that the two prior occasions the DNA testing was not carried out, the remedy that would attract my mind is to order Mwiriru and the child to avail themselves for testing,” Lenaola said.

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