Mirror or the lab? Judge orders DNA retest in unusual paternity battle

If it were Jesus’s time, the birth, the timing, the resemblance and the DNA of a minor now at the centre of an intriguing court battle could not have been a controversy.

Although the Bible does not tell us whether Jesus resembled his earthly father, theologians speculate that God could have planned that He resembled him to protect the family’s reputation.

At the time Mary got pregnant, she was in a binding engagement with Joseph. It further points out that Joseph had plotted to quietly bolt. Nevertheless, after everything was disclosed, he stuck on.

Fast forward to Kenya. A similar controversy is now playing out in court. A pregnant and married woman, timing ticks the boxes that they made love, which the man does not deny, but there is one question.

Can a man have sex with a woman who subsequently gives birth to a child resembling him, but the DNA tells otherwise, after turning out negative?

This is what a second test, which will be done by the government chemist, will determine, in an intriguing case where the first test done at the Lancet Kenya ruled out that the man code-named NJM was the father of the minor.

A dispute arose between NJM and a woman codenamed NKM over the paternity of the minor.

Curiously, the court heard that NJM and NKM were still living together, and the minor was his carbon copy, and had his name in his birth certificate.

However, the two ended up in court, in a dispute over the uncertainty of who the father of the minor was.

Armed with the results of the private laboratory, the man asserted that there was no biological connection between him and the child.

However, Principal Magistrate Kesse Cherono ordered that a third set of DNA tests should be done by a government chemist to verify if the other set was true.

Aggrieved, NJM filed an appeal before High Court Judge Reuben Nyakundi.

He argued that the magistrate erred by shifting the burden to prove that he was not the father of the minor, instead of requiring the mother to do the same. At the same time, he said that after pathologists carried out the tests, it was unfair and against his rights to privacy and bodily integrity would be violated.

 He asserted that the first set of tests was done with her consent.

However, Justice Nyakundi affirmed the lower court’s judgment, saying that further tests would be critical as the court was trying to find out the truth, and not to establish any fault.

The Judge observed NJM does not deny that he lives with NKM under the same roof. In addition, the judge further noted that he does not also deny that the minor in the case resembles him and having sex with her before she got pregnant.

Justice Nyakundi also said the issue was further complicated by the fact that he was also taking care of the minor as a father.

According to Justice Nyakundi, the lower court could not have settled for the two tests after their truthfulness was questioned.

“The appellant does not deny that the child resembles him, does not deny being intimate with the respondent at the material time, and does not deny performing parental duties toward the child notwithstanding his residence in the United States for much of the relevant period. These are not the circumstances of a stranger being visited with a bare and unsubstantiated claim of fatherhood. These are the circumstances of a husband, a registered father, and a man who has by his own conduct assumed parental responsibility, now seeking to sever that relationship entirely on the basis of two DNA tests whose integrity has been placed in issue before the court,” observed Justice Nyakundi.

Justice Nyakundi said that the lower court could summon the experts who prepared the DNA profile from Lancet to question them to establish the truth. At the same time, he directed that a retest ought to be done and a report submitted within 60 days.

He said that the case was not concluded as it was just a part of a fact-finding mission. Justice Nyakundi, however, questioned why the magistrate ordered a particular pathologist to conduct the tests. He said that anyone competent and working at the government chemist’s office could do the test.

In the case, the woman told the court that her husband had jumped the gun as the issues before the lower court had not been fully settled. She said that it is only after the lower court determines who is the father of the minor that he can appeal.

At the same time, she said that he had exaggerated the case as there was only one test done by the Lancet. NKM argued that she has been living with the NJM since December 31, 2020.

According to her, the birth records indicated that he was the father. At the same time, she said, the child looked like him, and he did not deny making love to her at the time she got pregnant.

She asserted that the case ought to be held to a higher level of proof. According to her, it would be unfair for a child of a subsisting marriage to be denied half her heritage.