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Married woman fails to stop workmate from child's DNA test

By Julius Chepkwony | June 14th 2021

Justice George Odunga dismissed AN’s application, saying any child has a right to know his or her biological parents. [George Njunge, Standard]

High Court has ordered a six-year-old child at the centre of a legal custody dispute between a woman and her workmate to be subjected to a DNA paternity test.

The mother, listed as AN to protect the identity of the minor, failed to stop the paternity test in an appeal she filed at the High Court in Machakos.

Last week, Justice George Odunga dismissed AN’s application, saying any child has a right to know his or her biological parents.

AN challenged the decision of a lower court that ordered FP, who claims to be the child’s biological father and wants to be involved in his upbringing, to carry out the test.

FP filed the case in 2017, seeking reasonable access to the minor and also to be allowed to provide for the child.

He claims the child is as a result of an intimate relationship he had with AN six years ago. The two are workmates at the Kenya Bureau of Standards.

But AN refuted his claims, saying the child in question was born out of her marriage with her current husband, identified as RM.

Both FP and AN produced two separate birth certificates of the minor but bearing names of different fathers.

FP’s document indicates that he is the father while AN’s identifies RM as the child’s father. AN alleges that FP’s document is fake.

But Justice Odunga, taking into consideration the provision of the Constitution, was of the view that an outcome of the DNA test would finally determine FP’s case.

Odunga said that where a person has reasonable ground for believing that he or she is the biological father or mother of a child, nothing bars him or her from seeking a determination.

The judge said whether or not the matter proceeded to trial, based on conflicting birth certificates exhibited by the parties, the issue of DNA being sought was clearly inevitable.

“A basis must be laid upon which such a test would be undertaken. In this case, in light of the conflicting information contained in the two birth certificates and as there was no evidence as to which one was genuine, it was only fair, just and expedient that the DNA test be undertaken,” Justice Odunga ruled.

The judge held that necessary safety measures be put into place to ensure the DNA testing will not expose the minor to Covid-19.

In her appeal, AN had faulted the trial magistrate’s order for the DNA test to be undertaken to determine the case.

AN maintained that she is lawfully married to RM and the minor is their child who was born on September 14, 2015.

She admitted in her petition that she knew FP and that they are workmates.

AN further argues that FP has his own family and that he (FP) is a total stranger to the minor and, therefore, not obligated to support the child.

She claims FP harbours a sinister motive of breaking her marriage after she declined his sexual advances.

In her appeal, AN claims FP deposited Sh30,200 into her Mpesa account on March 11, 2017, which she never solicited. She reversed the transaction.

She, however, revealed that FP, herself, and other workmates would offer each other social and financial support in times of need such as sickness and bereavement, which she says is a common practice at any workplace.

AN claims FP in a move to advance his improper motives misrepresented the gesture to mean that he (FP) was offering support for the minor.

She says the order of compulsory DNA testing was not in the interest of the child but servicing those of the applicant.

“Exposing the child to the likelihood of such an infection was a great compromise to the child’s best interest and the orders ought not to have been issued more so when the child was not under any deprivation,” she said.

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