Why Court Declined Woman’s Wish For Dad’s DNA

Posted: December 10, 2012 in Uncategorized

S. W. M v G. M. K

Petition No 235 of 2011

High Court at Nairobi

Constitutional & Human Rights Division

D.S Majanja.

October 5TH, 2012

“…Ordering the respondent  to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which rights are protected under the Bill of Rights. The petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.’’

The High Court recently declined to grant an order compelling Mr GMK to undergo a DNA test so as to ascertain whether he was the biological father of the SWM, thereby establishing biological paternity.

The background of the case is that SWM filed a petition in court on the 24th of October, 2011 seeking orders that a DNA test be carried out on Mr GMK and herself so as to ascertain whether GMK was her biological father.

SWM’s case was that she believed Mr GMK was her biological father as he had intimated this fact to her and influenced her to change her late son’s name from SM to GM.

She contended that she was born out of a union by the GMK and her mother in 1978, whereupon Mr GMK abandoned her mother. Thereafter, her mother got married to another man.

SWM alleged that the GMK had since interrupted and interfered with her way and means of livelihood after identifying her, by urging her to abandon her humble business upon the promise that GMK, a civic leader and a man of means, would provide for her maintenance.

It was SWM’s case that he did this for a season only to neglect   her leaving her desperate with no means to sustenance.
Based on this, SWM submitted that she felt highly obligated to ascertain her heritage and therefore filed this petition under Article 33(1) (a) of the Constitution of Kenya, 2010 on the freedom to seek, receive or impart information or ideas, in this case information relating to her biological father and heritage, seeking orders that a DNA test be carried out on the respondent and herself to establish paternity.

In response, GMK admitted to having an affair with the SWM’s mother in 1976, which resulted in a pregnancy that led the SWM’s mother to drop out of school.

He contended that SWM’s mother married another man in early 1977.  He went on to explain that SWM was born on 4th November, 1978 which was almost two years after her mother had been married to her present husband and that therefore, no legal presumption could arise that he was her father.

According to the GMK, the petition was only geared towards embarrassing him and SWM’s motive was to secure the assistance of court so that upon his demise, she could then claim rights of inheritance over his property.

In determining the petition, the Court was alive to the established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the right infringed and how it is infringed in respect to him as determined in the decided cases of Anarita K Njeru v Republic (No. 1) [1979] KLR 154) and John Kimani Mwangi v Town Clerk Kangema Nairobi Petition 1039 of 2007 (Unreported).

The court referred to the decided case of  Trusted Society of Human Rights Alliance v Attorney General and Others Nairobi Petition No. 229 of 2012 (Unreported) in recognising the obligation of the court in dealing with the manner of presenting claims for the enforcement of fundamental rights and freedoms, where the test was determined as on the basis that such a petition should be a substantive one and inquires whether the complaints against Respondents in a constitutional petition are fashioned in a way that gives proper notice to the Respondents about the nature of the claims being made so that they can adequately prepare their case.

The Court made reference to article 33(1)(a) of the Constitution which SWM had invoked pleading her case squarely on the basis that her freedom of expression had been violated. This article provides:

33. (1) Every person has the right to freedom of expression,   which includes —

(a) freedom to seek, receive or impart information or ideas;

(b)  freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

According to the court, a plain reading of this article shows that the provision is concerned about seeking and receiving of ideas, communication and information.

The Judge was of the view that he did not see how compelling a person to undergo a DNA test fell within the scope of Article 33. The Court went on to state that SWM had not demonstrated that her right to freedom of expression has been violated by GMK.

The Court guided itself on these principles in determining that SWM had failed to first, demonstrate that her right to freedom of expression had been violated as per Article 33 and secondly, failed to demonstrate how a petition compelling a person to undergo a DNA fell within the scope of Article 33.

The Court held that ordering GMK to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which are protected under the Bill of Rights.

The Court found that S.W.M bore the burden of demonstrating to the Court the right she sought to assert or vindicate and which the court would consider as overriding GMK’s rights, which burden she failed to exercise and therefore the petition was struck out as any orders made thereto would occasion prejudice to the GMK.

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