A couple is locked in a legal battle with a man claiming to be the father of their four-year-old son.
The boy’s parents, identified as FPA (father) and APA (mother), had moved to the High Court to challenge an order by the magistrate’s court, directing that they undergo DNA tests to determine the boy’s paternity.
The man, identified as ANM, had told a magistrate’s court in Mavoko that he had been intimate with the boy’s mother, and demanded access to him or that he be granted custody altogether.
The magistrate had directed that the three undergo DNA tests to determine the boy’s paternity.
The orders were made before the full hearing of the case.
Aggrieved by the lower court’s orders, FPA and APA moved to the High Court, arguing the directive was an invasion of their privacy.
The couple termed the order, issued in 2017, a breach of their right to peace, harmony of the family and that it would jeopardise their family.
They argued that by determining the paternity of the minor, the family set up in which the minor is being brought up is likely to be disintegrated.
High Court judge George Odunga yesterday agreed the couple has a right to privacy and quashed the orders issued by the lower court.
Justice Odunga, however, sent them back to the trial court where they will argue why they should not have their DNA samples extracted to determine the minor’s biological father.
“While I find that in appropriate cases, the court is empowered to direct parties to undergo DNA test and that there is nothing unconstitutional about that power, in the exercise of this court’s supervisory powers, which is a constitutional power, I hereby set aside the orders made on August 14, 2017 directing the parties to undergo DNA test. I further direct that the matter be referred back to the trial court to hear the parties and determine the same as provided under the law,” Odunga ruled.
In the case, the court was told FPA married APA in 2010. Five years later, on March 14, 2015, the minor in question was born.
The man who claims to be the boy’s father told court he fathered him and that he has been providing for his upkeep. He argued he ought to be given access to the boy or granted custody.
Also in contest is whether the boy was renamed. ANM is said to have another birth certificate.
APA told court ANM is her colleague. She claims he tried to pursue her, but she rejected his advances.
She said he had vowed to wreck her marriage to FPA if she rejected him.
The couple said the interests of the minor is best taken care of in their family unit, and they have the financial and moral ability and willingness to discharge their parental responsibilities.
They insisted that ANM was only pursuing the case to serve selfish interests as he is married with children.
ANM told court that in February 2014, he met APA and they started an intimate relationship.
ANM said the woman never told him she was married. He said that when the boy was born, they agreed he be given a Pokot name.
He claimed he supported the woman during and after delivering. ANM also said that at the end of her maternity leave, they agreed she would pursue her master’s degree, which he paid for. He also furnished her house, he claimed.
ANM said in March 2017, APA’s attitude towards him changed. He later learnt she had moved in with another man. He said he discovered she had separated from FPA, but later resolved their differences and started living together again.
ANM maintained he is the minor’s biological father and only wanted to have access to him.
The Attorney General, also a respondent in the case, supported ANM’s demand for DNA tests. He argued the minor had a right to parental care whether the parents were married or not.
The AG said the best interests of the child can only be realised if he knows who his real parents are.
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