Nexus of a biological relationship has to be established to warrant an order for Deoxyribonucleic Acid (DNA) Test

D N M v J K

Petition No 133 of 2015

High Court at Nairobi

Constitutional & Human Rights Divison

J L Onguto, J

September 7, 2016

Reported by Teddy Musiga and Mercy Cherotich

Constitutional Law - fundamental rights freedoms – right to dignity - family - claim that the Respondent's failure to recognize the Petitioner as his daughter violated her constitutional right to family and right to dignity - whether the Respondent failed to recognize the Petitioner as her daughter - Constitution of Kenya, 2010 articles 28 and 45

Constitutional Law – fundamental rights and freedoms – right to privacy – DNA testing - claim that the Respondent’s right to privacy would be violated by an order for DNA test - whether an order for DNA testing would equate an intrusion into the Respondent’s right to privacy - Constitution of Kenya, 2010 article 31.

Brief facts

The Petitioner sought an interlocutory order directing the Respondent to submit and subject himself to a Deoxyribonucleic Acid (DNA) test for the purposes of determining whether the Respondent was the Petitioner’s biological father. The Petitioner alleged that in 1980, the Respondent had an intimate relationship with the Petitioner’s mother and as a result, the Petitioner was born. The Petitioner stated that she was informed that the Respondent was her father and that he had over the years assisted her financially including partly meeting her expensive medical treatment for breast cancer. In the main Petition, the Petitioner claimed that her rights were being violated as the Respondent had continued to treat the Petitioner in a discriminatory manner on grounds of birth contrary to article 27(4) and (5) of the Constitution. The Petitioner also alleged that her rights to dignity under article 28 and to a family under article 45 of the Constitution had also been violated by the Respondent in so far as the Respondent had made it difficult and impossible for the Petitioner to relate and identify with the Respondent as her father.

The Respondent filed a Replying Affidavit where he denied that there had been any relationship between himself and the Petitioner’s mother or ever supporting the Petitioner financially or otherwise. Additionally, the Respondent denied being the biological father of the Petitioner.

Issues:

 i. Whether it was mandatory to establish a nexus of a biological relationship to warrant the order of a DNA test at the interlocutory stage.

 ii. Whether the Petitioner’s rights to dignity under article 28 and to a family under article 45 of the Constitution of Kenya, 2010 had been violated by the Respondent by making it difficult and impossible for the Petitioner to relate and identify with the Respondent as her father.

 iii. Whether an order for DNA testing would equate an intrusion into the Respondent’s right to privacy.

iv. Whether there was any legislative framework with regard to DNA testing in non-consenting adults.

v. Whether there were circumstances that could warrant the Court to order for DNA testing at an interlocutory stage.

Held:

1. The Court ought not to issue mandatory orders at an interlocutory stage of the proceedings especially where the same or similar orders were sought in the main Petition. The Court had, under article 23 of the Constitution of Kenya 2010 an almost unlimited power to fashion orders or relief as may be appropriate. The jurisdiction was unlimited as to what and when orders could be issued.

2. The Court had to exercise caution especially when the orders sought were mandatory in nature and where they could also end up being an intrusion of another individual’s constitutionally guaranteed rights or freedoms. The approach by the Court when faced with an application for a mandatory interlocutory order should be, prior to granting such an order, satisfied that there were special circumstances, which warranted such an order being issued.

3. The Court had to be satisfied that the case was a clear and straightforward one, which ought to be dealt with at once, and that at trial the Court would be vindicated for having issued the order in the first place. Where there was any slight doubt, then such an order could not be issued. The standard would therefore certainly not be the equivalent of a prima facie case being established. The rationale ought to be that acts performed pursuant to mandatory orders may not be easily remedied if the claimant’s case was ultimately a flop at trial. Mandatory orders may be issued by the court at an interlocutory stage even where it appeared to fragment the Petition and dealt with or granted only one or some of the reliefs sought in the main Petition.

4. The law on the topic of compulsory blood or DNA testing in paternity disputes, which was also partly an issue in the Petition, was yet to be completely and satisfactorily developed locally. There was no express legislative framework, which specifically regulated the position in civil cases. The few judicial pronouncements on the topic did not appear unanimous in approach or principle. Whereas in relation to children, the courts had occasionally been quick to act in the child’s best interest and ordered DNA testing, with regard to non-consenting adults, the jurisdiction had been left hazy.

5. For a DNA testing order to issue, an applicant had to establish that some right recognized by the Constitution had been violated or infringed. The applicant had to have also established the biological relations with the respondent. While one set of case law suggested that the burden was to be discharged on a prima facie basis, the other suggested that the burden was to be discharged through the ordinary standard of civil litigation, that of a balance of probabilities.

6. The Court had an inherent jurisdiction to order or not to order DNA testing both where a child was involved and where there was no child but only a non-consenting adult. The court ought to be mindful to protect bodily security and integrity as well as the privacy of individuals to be subjected to such tests. The essence was that the court ought to be ready to assert its role of resolving disputes fairly and one way of doing so was by discovering the truth, even through compulsion.

7. Paternity tests were known to have a high degree of accuracy. Statistics showed that though not absolute, the percentage of accuracy to the family tree was a staggering 99.9%. They revealed the truth and generally courts had accepted their overall accuracy and value.

8. Even though the Court’s core role was to determine disputes, the courts often deployed methods of compulsion not necessarily to get to the truth but to help determine disputes fairly. It was thus common to see witnesses being summoned and also being compelled at the risk of jail, to answer questions. In all instances, the party which sought the Court’s assistance ought to lay a firm legal and factual foundation for his case. It was not different where DNA testing was sought.

9. In the case of DNA testing, the basis ought to be laid even where a child was involved, as ordering DNA testing was not a mere procedural matter but was substantive enough given that an individual’s constitutional rights may have been limited through such testing.

10. The evidential basis of the Petitioner’s case was the affidavit sworn in support of the application. The Respondent largely denied the affidavit evidence. When facts averred in an affidavit had not been admitted, they could not be taken on their face value to be creditworthy and tenable. Without disregarding them, such facts ought to be subjected to challenge and in light of the circumstances of the case.

11. The Respondent had himself sworn a detailed affidavit in response to both the Petition as well as the instant interlocutory application. The only admission to any of the Petitioner’s averments was that the Respondent once helped the Petitioner by settling part of the Petitioner’s medical bill. The help was stated to have been out of humanitarian grounds. The admission was not made under oath. The admission was also not made directly by the Respondent. It was made by the Respondent’s counsel. Its probative value could consequently be subjected to question.

12. Besides the alleged admission, there was no other nexus biologically connecting, even by the slightest imagination, the Petitioner and the Respondent or the Petitioner’s mother and the Respondent. The Petitioner was also not a child to warrant any special circumstances being invited. The Petitioner sought to know the truth through a scientific determination of paternity. The Petitioner also sought to establish the violation of her constitutional rights.

13. A determination of paternity (or more correctly, non-paternity) put to rest nagging questions or doubts. A basis however needed to be set for such a test. Such a basis could be set in the preliminary stages of the suit where there was clear and irrefutable conduct pointing towards paternity. Such a basis could be found to have been established after trial.

14. The matrix of the competing interests which involved the Petitioner’s right to have the dispute adjudicated fairly and the Respondent’s interests to have his constitutional rights to bodily integrity and privacy protected, would dictate that the level of certainty to be achieved was not simplified. Rather the court had to be satisfied that an appropriate basis had been laid out.

15. The Petitioner’s affidavit evidence had to be subjected to appropriate challenge and testing through cross-examination prior to any final orders being issued because an order for DNA testing made at an interlocutory was basically final. Once undertaken, it could not be undone though it could be ignored.

16. Where paternity was in dispute, then within reasonable limits and in appropriate cases DNA testing of non-consenting adults could be ordered even at an interlocutory stage. The bid to establish the truth through scientific proof should not be generalized and should never so lightly prevail over the right to bodily integrity and right to privacy until it was clear that such rights ought to be limited. The clarity was only established where an undoubted nexus was shown as well as a specified quest to protect or enforce specific rights. Untested and controverted affidavit evidence may not suffice.

17. The Court could not make the orders sought at that stage of the proceedings, as the Petitioner on the basis of the untested affidavit evidence had failed to do enough to establish the requisite nexus.

Application dismissed with no orders as to costs.