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Former MP loses 10-year court battle to avoid paternity test


Test tube with blood sample for paternity test [Courtesy]

A former Member of Parliament has lost a case he has been fighting for the last 10 years to avoid a paternity test to confirm if he is the father of a child.

The politician, code-named PKM, had said the test was an invasion of his privacy. But after three attempts to steer clear of a DNA test, he has lost the battle.

His fate was sealed last Friday when the Court of Appeal ruled that he must undergo a paternity test.

On March 18, justices Hannah Okwengu, Mbogholi Msagha and Imana Laibuta dismissed his appeal, ruling that a DNA test will confirm whether he is the father of the minor, who is code-named JW.

“We do not see how that would prejudice him or render his intended appeal nugatory. Thus the interest and right of the child JW to know who the biological father is, takes precedence over the applicant’s right to privacy,” ruled the judges.

JW was born on August 9, 2009, after what the mother said was a loving relationship with the politician. The battle started in 2012 when the man was sued before the Magistrate's Court for child maintenance.

According to the mother, PKM gave financial support for the infant during the first year.

She told the court that the ex-MP provided shopping worth Sh50,000 and gave Sh20,000 cash every two weeks. He would send his driver or visit the baby himself

The woman said the politician stopped supporting them in August 2010.

After hearing both parties, the Magistrate's Court ordered PKM to undergo a DNA test at Kenyatta National Hospital.

Aggrieved, PKM filed a constitutional case at the High Court before Justice Isaac Lenaola on March 21, 2014. He sued the Magistrate’s Court and JW. However, both parties never filed a reply.

The man argued that there was no proof he was the child's father hence a DNA test was unnecessary.

He accused the lower court of intruding on his privacy, and that the ruling was biased to favour the woman, code-named SPM.

The MP said the orders were calculated to harass and intimidate him into conceding to provide for the minor.

PKM also argued that the case was filed to portray him as an irresponsible leader. He claimed to have suffered loss, damage, mental anguish, stress and anxiety during the political campaigns of 2013.

In his verdict, Justice Lenaona found that although the politician had convinced him that he should not be forcibly subjected to a medical test, he held that the minor had a right to know his biological parents.

“For the petitioner, it would be a minor inconvenience if he attends to DNA testing once. But for a child not to know its parents and benefit from their protection and care, the damage may linger for years to come.

"I choose to protect the baby as opposed to the petitioner in such circumstances," said Justice Lenaola.

The judge ordered that the parties should agree on a date to have their DNA taken.

According to the Kenya Medical Research Institute, a standard paternity test involves testing the father, mother and child.

However, the results can still be conclusive without the mother's DNA if her motherhood is not in doubt.

But the fight did not end there. Two months later, the politician went before Justice Lenaola seeking orders to suspend the judgment.

He argued that the court ought to consider that he had filed an appeal.

PKM said he stood to suffer "irreparable harm and may incur great loss and injury, which could be compensated in damages if the orders were not granted."

But JW’s mother urged the judge to dismiss the application. She argued that the politician had defied court orders and was subjecting the minor to unnecessary suffering.

Justice Lenaola dismissed the application after finding out the politician never showed up at the Government Chemist for a DNA test on April 1, 2014.

"Orders that he should undergo DNA testing were issued several times by the Children’s Court but the applicant has either challenged those orders and obtained orders stopping the testing or has defied those orders as he has done in the present case even without any stay orders in his favour,” said the judge.

Justice Lenaola added that the politician was using the court system "to avoid the inevitable."

This after it was revealed PKM had filed a separate case before the civil court on the same issue.

Justice Lenaola continued: “He has not succeeded in any of those courts because the view of the courts, including this one, has been that in the best interests of the child.”

The judge also condemned the politician to pay costs of the case.

By the time Justice Lenaola had delivered his ruling, the Magistrate's Court had issued a warrant of arrest against the politician. The warrant was signed on October 16, 2015.

PKM lamented that if the orders were not lifted, he was likely to be jailed. He claimed that his lawyer was sick and could not attend court on the hearing date.

PMK also stated that he had challenged Justice Lenaola’s judgment before the Court of Appeal.

On January 28, 2016, Justice Rose Ougo lifted the warrants and ordered that the case be heard before any other magistrate other than the one who had issued the warrants.