JUDGMENT
A. INTRODUCTION
1. The Petitioner moved this court vide constitutional petition dated 6.7.20 seeking that this Court invokes constitutional jurisdiction to compel DNA testing. The dispute, while deeply personal, raises important questions regarding the balance between the right to identity and the protection of individual dignity, privacy, and bodily integrity.
2. The Petitioner seeks:
a. A declaration that the Respondent is his biological father;
b. A declaration of violation of constitutional rights;
c. An order compelling DNA testing; and
d. Consequential relief including rectification of birth records.
3. The Respondent denies any relationship with the Petitioner and opposes the Petition as speculative, unsupported, and an unjustified intrusion into his constitutional rights.
4. It is not disputed that interlocutory DNA testing was previously declined herein by Hon. Justice Ndungu vide his ruling dated27.10.21 . That prior determination, though interlocutory, is a relevant factor in assessing whether the present Petition meets the legal threshold.
B. FACTUAL BACKGROUND
5. The Petitioner testified as PW1 and he called his mother as PW2 . The case rests on assertions that his mother informed him that the Respondent is his biological father and that they has a relationship between 1978 and 1979. On cross examination he admitted that his national identity card indicates that he was born on 27th March 1982. He said he now seeks scientific confirmation through DNA testing. On cross- examination he The mother PW2 told this court that she engaged in sexual intercourse with the respondent in 1977 when she was about 15 years old and she conceived and gave birth to the petitioner on 21.3.78 . She was at pains to explain how the petitioner’s national identity card indicates he was born in 1982 .
6. The Respondent categorically denied any relationship with the Petitioner or his mother and contends that the claim is baseless.
C. ISSUES FOR DETERMINATION
8. I have carefully considered the petition , the response and the able submissions by both counsel on record . The issuesarising for determination are as follows :
i. Whether the Petitioner has established a basis for compulsory DNA testing .
ii. Whether the Petition meets the constitutional threshold;
iii. Whether the reliefs sought are merited.
WHETHER DNA TESTING SHOULD BE ORDERED
Analysis
Governing Principles
17. The threshold for grant of DNA orders is that the petitioner must lay a basis for grant of the same . Compulsory DNA testing touch the rights under Articles 28 and 31 of the Constitution and thus the court must exercise great caution before granting DNA orders . In the case of D.N.M v J.K [2016] eKLR, the Court held that a party must establish a prima facie nexus before DNA testing can be ordered.
18. Similarly In the case of S.W.M v G.M.K [2012] eKLR, the Court emphasized that the burden lies on the applicant.
19. In the case Benjamin Kibiwot Chesulut v Mary Chelangat [2015] eKLR the court held that the “eminent need test” which requires necessity and proportionality must be met before orders for DNA testing can be made .
20. Courts must also guard against fishing expeditions to prove paternity (HCK v EJK [2008] eKLR).
21. In their evidence in court , while Pw2 said engaged in a sexual relationship with respondent between 1978 and 1979. On cross examination Pw1 said his national identity card says he was born in 1982. This court takes judicial notice that the normal human gestation period is 9 months . if Pw2 conceived in 1977 then PW1 would have been born in 1978 as she puts it . However the national identity card of petitioner indicates he was born in 1982 which is about 5 years after 1977 and 4 years after 1978. A national identity card is prima facie proof of dates of birth for an adult in the absence of a birth certificate. It is said that it is a mother who knows the father to her child but in this case the evidence of Pw1 and Pw2 is contradicted by the identity card of PW1. This is a civil matter and the standard of proof is on a balance of probability. The evidence adduced by the petitioner and his mother is inconsistent, uncorroborated, and largely hearsay. The petitioner seems to be on a fishing expedition to find out his paternity . The said contradiction goes to the root of the petition . The court must caution it’s self d against fishing expedition in paternity matters as was held in the case of HCK v EJK [2008] eKLR(Supra ) . The respondent vehemently denied paternity of the petitioner .
22. I find that the Petitioner has not established a prima facie nexus linking the Respondent to him.
23. The Court finds that no “eminent need” to order DNA has been demonstrated as no basis has been laid for the same .
24. The threshold for compulsory DNA testing has not been met.
25. In any event , the petitioner has moved this court over 40 years down the line and the delay of over four decades is unexplained and highly prejudicial to the respondent. Granting such an order would unjustifiably infringe the Respondent’s constitutional rights to privacy under Article 31 of the Constitution .
WHETHER THE PETITION MEETS THE CONSTITUTIONAL THRESHOLD
26. The principle in Anarita Karimi Njeru v Republic [1979] KLR requires that a constitutional petition be pleaded with precision.This was reaffirmed in Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, where the Court emphasized that a petitioner must clearly demonstrate the manner of violation. CONSTITUTIONAL FRAMEWORK
27. The Petition invokes several provisions of the Constitution, which I reproduce for completeness:
Article 28 – Human Dignity
“Every person has inherent dignity and the right to have that dignity respected and protected.”
Article 31 – Privacy
“Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.”
Article 27 – Equality and Freedom from Discrimination
“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”
28. These provisions of the Constitution must be read together and balanced with the rights of the respondent. The Court must ensure that enforcement of one right does not unjustifiably infringe another’s right .
29. In the instant case, while the Petitioner cites constitutional provisions, he does not demonstrate how the Respondent has violated them. The Petition and the evidence does not disclose any specific conduct by the Respondent that constitutes a constitutional breach.In the case of S.W.M v G.M.K [2012] eKLR, it was held that mere assertions without demonstration of violation are insufficient to prove constitutional violations.
30. The Court finds that the Petition is speculative and does not meet the constitutional threshold.
G. WHETHER RELIEFS ARE MERITED
31. The declaratory reliefs sought depend on proof of paternity.In the absence of proof, the Court cannot grant the declarations sought. No constitutional violation has been established.
H. DISPOSITION
33.The Court finds that:
a. No basis has been laid for ordering for DNA testing;
b. The Petition fails the constitutional threshold for constitutional petitions ;
c. The reliefs sought are unmerited.
I. ORDERS
32. Accordingly, the Court makes the following orders:
1. The prayer for DNA testing is declined.
2. The Petition is dismissed in its entirety.
3. All declaratory and consequential reliefs are declined .
4. Each party shall bear their own costs.
T.A ODERA
JUDGE
14.4.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 14TH TH DAY OF APRIL 2026, IN THE PRESENCE OF CA ONKUNDI. MISS ATIKA FOR PETITIONER & MR ALELA HOLDING BRIEF FOR MR MOMANYI FOR RESPONDENT
A. INTRODUCTION
1. The Petitioner moved this court vide constitutional petition dated 6.7.20 seeking that this Court invokes constitutional jurisdiction to compel DNA testing. The dispute, while deeply personal, raises important questions regarding the balance between the right to identity and the protection of individual dignity, privacy, and bodily integrity.
2. The Petitioner seeks:
a. A declaration that the Respondent is his biological father;
b. A declaration of violation of constitutional rights;
c. An order compelling DNA testing; and
d. Consequential relief including rectification of birth records.
3. The Respondent denies any relationship with the Petitioner and opposes the Petition as speculative, unsupported, and an unjustified intrusion into his constitutional rights.
4. It is not disputed that interlocutory DNA testing was previously declined herein by Hon. Justice Ndungu vide his ruling dated27.10.21 . That prior determination, though interlocutory, is a relevant factor in assessing whether the present Petition meets the legal threshold.
B. FACTUAL BACKGROUND
5. The Petitioner testified as PW1 and he called his mother as PW2 . The case rests on assertions that his mother informed him that the Respondent is his biological father and that they has a relationship between 1978 and 1979. On cross examination he admitted that his national identity card indicates that he was born on 27th March 1982. He said he now seeks scientific confirmation through DNA testing. On cross- examination he The mother PW2 told this court that she engaged in sexual intercourse with the respondent in 1977 when she was about 15 years old and she conceived and gave birth to the petitioner on 21.3.78 . She was at pains to explain how the petitioner’s national identity card indicates he was born in 1982 .
6. The Respondent categorically denied any relationship with the Petitioner or his mother and contends that the claim is baseless.
C. ISSUES FOR DETERMINATION
8. I have carefully considered the petition , the response and the able submissions by both counsel on record . The issuesarising for determination are as follows :
i. Whether the Petitioner has established a basis for compulsory DNA testing .
ii. Whether the Petition meets the constitutional threshold;
iii. Whether the reliefs sought are merited.
WHETHER DNA TESTING SHOULD BE ORDERED
Analysis
Governing Principles
17. The threshold for grant of DNA orders is that the petitioner must lay a basis for grant of the same . Compulsory DNA testing touch the rights under Articles 28 and 31 of the Constitution and thus the court must exercise great caution before granting DNA orders . In the case of D.N.M v J.K [2016] eKLR, the Court held that a party must establish a prima facie nexus before DNA testing can be ordered.
18. Similarly In the case of S.W.M v G.M.K [2012] eKLR, the Court emphasized that the burden lies on the applicant.
19. In the case Benjamin Kibiwot Chesulut v Mary Chelangat [2015] eKLR the court held that the “eminent need test” which requires necessity and proportionality must be met before orders for DNA testing can be made .
20. Courts must also guard against fishing expeditions to prove paternity (HCK v EJK [2008] eKLR).
21. In their evidence in court , while Pw2 said engaged in a sexual relationship with respondent between 1978 and 1979. On cross examination Pw1 said his national identity card says he was born in 1982. This court takes judicial notice that the normal human gestation period is 9 months . if Pw2 conceived in 1977 then PW1 would have been born in 1978 as she puts it . However the national identity card of petitioner indicates he was born in 1982 which is about 5 years after 1977 and 4 years after 1978. A national identity card is prima facie proof of dates of birth for an adult in the absence of a birth certificate. It is said that it is a mother who knows the father to her child but in this case the evidence of Pw1 and Pw2 is contradicted by the identity card of PW1. This is a civil matter and the standard of proof is on a balance of probability. The evidence adduced by the petitioner and his mother is inconsistent, uncorroborated, and largely hearsay. The petitioner seems to be on a fishing expedition to find out his paternity . The said contradiction goes to the root of the petition . The court must caution it’s self d against fishing expedition in paternity matters as was held in the case of HCK v EJK [2008] eKLR(Supra ) . The respondent vehemently denied paternity of the petitioner .
22. I find that the Petitioner has not established a prima facie nexus linking the Respondent to him.
23. The Court finds that no “eminent need” to order DNA has been demonstrated as no basis has been laid for the same .
24. The threshold for compulsory DNA testing has not been met.
25. In any event , the petitioner has moved this court over 40 years down the line and the delay of over four decades is unexplained and highly prejudicial to the respondent. Granting such an order would unjustifiably infringe the Respondent’s constitutional rights to privacy under Article 31 of the Constitution .
WHETHER THE PETITION MEETS THE CONSTITUTIONAL THRESHOLD
26. The principle in Anarita Karimi Njeru v Republic [1979] KLR requires that a constitutional petition be pleaded with precision.This was reaffirmed in Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, where the Court emphasized that a petitioner must clearly demonstrate the manner of violation. CONSTITUTIONAL FRAMEWORK
27. The Petition invokes several provisions of the Constitution, which I reproduce for completeness:
Article 28 – Human Dignity
“Every person has inherent dignity and the right to have that dignity respected and protected.”
Article 31 – Privacy
“Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.”
Article 27 – Equality and Freedom from Discrimination
“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”
28. These provisions of the Constitution must be read together and balanced with the rights of the respondent. The Court must ensure that enforcement of one right does not unjustifiably infringe another’s right .
29. In the instant case, while the Petitioner cites constitutional provisions, he does not demonstrate how the Respondent has violated them. The Petition and the evidence does not disclose any specific conduct by the Respondent that constitutes a constitutional breach.In the case of S.W.M v G.M.K [2012] eKLR, it was held that mere assertions without demonstration of violation are insufficient to prove constitutional violations.
30. The Court finds that the Petition is speculative and does not meet the constitutional threshold.
G. WHETHER RELIEFS ARE MERITED
31. The declaratory reliefs sought depend on proof of paternity.In the absence of proof, the Court cannot grant the declarations sought. No constitutional violation has been established.
H. DISPOSITION
33.The Court finds that:
a. No basis has been laid for ordering for DNA testing;
b. The Petition fails the constitutional threshold for constitutional petitions ;
c. The reliefs sought are unmerited.
I. ORDERS
32. Accordingly, the Court makes the following orders:
1. The prayer for DNA testing is declined.
2. The Petition is dismissed in its entirety.
3. All declaratory and consequential reliefs are declined .
4. Each party shall bear their own costs.
T.A ODERA
JUDGE
14.4.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 14TH TH DAY OF APRIL 2026, IN THE PRESENCE OF CA ONKUNDI. MISS ATIKA FOR PETITIONER & MR ALELA HOLDING BRIEF FOR MR MOMANYI FOR RESPONDENT