What the Courts Consider Before Ordering a Paternity DNA Test

Paternity testing in Kenya.

Paternity testing is often assumed to be an absolute right for any man seeking to confirm or deny his biological link to a child. There is no better way to confirm that a child is one's than determining if it shares the same genetic material as oneself.

However, in the Kenyan legal landscape, biology does not always trump the law. While courts will generally not force a man to be responsible for a child not his, the same courts can make an order preventing DNA testing. While Article 53(1)(e) of the Constitution grants a child the right to parental care and protection, which includes knowing one's parents, the courts also have the responsibility of shielding families from paternity fishing expeditions that may cause more harm than good.

Kenyan courts exercise significant discretion in granting DNA orders. An applicant does not have an automatic right to such an order; rather, they must meet a specific evidentiary and legal threshold while overcoming high constitutional hurdles. The courts also consider several factors before granting an order for DNA testing.

In MW v KC (Miscellaneous Application 105 of 2004) [2005] KEHC 3172 (KLR) (29 September 2005) (Ruling) MW v KC [2005] eKLR, the court established four key conditions that must be met for a court to compel DNA.

To succeed, the applicant must meet the following:

• There is sufficient cause for seeking the order by showing that, in the circumstances of the case, there was a likelihood that the respondent could be the father of the child;
• that the respondent’s refusal to submit to a DNA test had violated the child’s right to know his father;
• that the respondent’s refusal to take the DNA test was unreasonable because it had deprived the child of the possible enjoyment of the rights and benefits enshrined in sections 4 and 19 of Part II of the Children Act, 2001;
• that the court had jurisdiction under the Act to compel the respondent to take the DNA test

These have been discussed in detail below:

Under Article 53(2) of the Constitution and Section 4 of the Children Act, the best interest of the child is the core consideration in any matter involving a minor. Courts have the power to deny a DNA test if the process or the potential result is deemed detrimental to the child’s well-being.

Preserving stability for the child is a very crucial factor that the court focuses on. If a child has known one father figure since birth and a sudden DNA test threatens to destabilise their emotional and social identity, the court may rule that maintaining the status quo is in the child's best interest.

Conversely, in many cases, the court will order the DNA test because it is in the best interest of a child to know their parents. This is beneficial, as the courts are able to protect the interests of the child and their welfare better, hence upholding the principle of the best interest of the child.

In the case of MW v KC [2005] eKLR, Justice GBM Kariuki held that:

In the present case, the respondent was in “a come we stay relationship” during which the applicant allegedly made her pregnant. In the circumstances, there is a likelihood that the respondent could be the father of the child. Having had a relationship with the applicant, albeit for a short span of time during which the child was conceived, it is unreasonable for the respondent to turn his back on the child and escew his parental responsibility merely because he was born out of wedlock and there is no DNA test to prove that he is the father. The child is entitled to know if the respondent is the father and his refusal to take a DNA test is not only unreasonable but has also denied the child the possible enjoyment of the rights under the Act. It would not be unreasonable in the circumstances to infer that perhaps the refusal by the respondent to submit to DNA test is borne out of fear on his part that he could be the father of the child. It is my view that sufficient cause has been shown why the respondent should be compelled to undergo a DNA test so as to determine the paternity of the child. (paragraph 14)

In the decision of C.M.S V I.A.K CONSTITUTIONAL APPLICATION NO. 526 OF 2008 that:

In determining a matter such as this, the court must of necessity weigh the competing right of the child and the Petitioner who is alleged to be the biological father. The right of the child to parental care takes precedence, in my view, particularly in light of the cardinal principle set out in Article 53(2) that in matters such as this, the paramount consideration is the best interests of the child. [Cited in MW v KC [2005] eKLR [G K M v A N (Miscellaneous Civil Application 59 of 2016) [2016] KEHC 1202 (KLR) (22 November 2016) (Ruling)]

In GKM v AN [2016] eKLR, the court noted that while DNA is vital for conclusive determination, it must be balanced against the child’s welfare. If a DNA test is sought for "vindictive motives" or to escape parental responsibility that has already been voluntarily assumed, the court may decline the application. Thus, if the respondent's refusal to take a DNA test violates the child’s right to know the father, the courts will be inclined to order the test.

Courts will not grant DNA orders based on mere suspicion. An alleged man or woman must provide "threshold evidence" that suggests the test is necessary. There may be different factors that courts consider when determining whether a prima facie case for DNA testing exists. For instance, a man may have grounds such as infidelity or the existence of another man with evidence.

A prima facie basis for DNA testing has to be established by a party seeking DNA testing because such a test affects the right to privacy and security of the body. This requirement ensures that courts order a DNA test only when necessary.

A prima facie case for a DNA order is established by the applicant proving a likelihood that the respondent could be the child's father. This may be shown by cohabitation, even if for a short stint, when the child was conceived.

In cases where the father is seeking a DNA testing order to deny paternity, they may be required to show evidence that there is a likelihood that they are not the father. This could be due to evidence of infidelity. The High Court in MW v KC [2005 eKLR held that:

To my mind, so as to succeed in securing the order sought, the applicant must show firstly that there is sufficient cause for seeking the order by showing that in the circumstances of the case there is a likelihood that the respondent could be the father of the child and secondly that the respondent’s refusal to submit to DNA test has violated the child’s right to know his father and thirdly that the respondent’s refusal to take the DNA test is unreasonable because it has deprived the child of the possible enjoyment of the rights and benefits enshrined in sections 4 to 19 of part II of the Act and fourthly that the court has jurisdiction under the Act to compel the respondent to take the DNA test. (paragraph 9).

If there is no basis laid down for a DNA test, the court must reject it. It is also the case that if the best interest of a child favours ordering a DNA test, then the court will make such an order. In GKM v AN [2016] KEHC 1202 (KLR), the court held that:

Accordingly, upon meticulous consideration of all factors, if court is satisfied that the scale tilts towards upholding the best interest of the child, so be it; and this should not be seen as an act of discrimination or a contemptuous treatment of the right of privacy and security of body of the Applicant as the lesser or lighter; but judicial decision aimed at meeting the ends of justice. It is also true that the DNA Testing could also be refused because no basis has been laid for it especially where there is no sufficient nexus that is shown to exist or to have existed between the Applicant and Respondent as to justify a conclusion on prima facie basis that biological relationship between the Applicant and the child is a real possibility. On the novel balancing act of two competing rights of the parties, see a perfect analogy in the case of ABSALOM DOVA vs. TARBO TRANSPORTERS [2013] eKLR that;

‘’The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination’’. (Paragraph 10)

Further in the decision of ANM v FPA [2021] eKLR, the court emphasised that DNA test orders are akin to interim injunctions. The applicant must show a prima facie case with a high probability of success. If the applicant fails to provide evidence of a relationship or reasons for doubt beyond "curiosity," the order may be denied. In MKK v LGI [2021] KEHC 13126 (KLR), the court held that:

Having laid the above basis, I now come to the question whether the applicant has made out a prima facie case, which deserves the court’s order against the respondent for a DNA test. The duty to convince the court on the need to order the test remained with the applicant and the standard was that on a balance of probabilities. It was never the duty to prove paternity at this stage. Here what needs proof to the satisfaction of the court is whether there is eminent need to establish paternity so that the claim on behalf of the child can be pursued. (paragraph 11)

Some of the instances when the courts may order DNA testing are when there are allegations of the child being born out of wedlock and the putative father has denied paternity. This affects the rights of a child to enjoy proper parental upbringing, health care, and good education. See the case of MW v KC [2005] eKLR, where it was held that:

Protection of the law in my view includes the right of the child to realize the benefits conferred by the Act which are specifically set out in Part II (of the Act). If the child cannot enjoy proper parental upbringing, health care, and good education because the child was born out of wedlock, and because the putative father has denied paternity (even where the parties have lived in a “come we stay relationship” and is therefore not legally bound to meet his parental responsibility) then the provisions of the Act affording the child protection become a dead letter unless the courts are prepared to compel putative fathers to undergo a DNA test to determine paternity. (paragraph 12).

Because of the likelihood of abuse by parties who may likely bring their marital and love relationship troubles to the affairs of the child, the courts are vigilant when granting an order for compulsory DNA. The court, in exercising its discretionary power to grant or not to grant that relief, ought to ensure sine quo non;

• that the application under section 22 of the Children Act, 2001, was made in good faith;
• that there were good grounds for making it, that is to say, sufficient cause shown; and
• that the application was not actuated by malice or designed to economically exploit or embarrass, or was otherwise an abuse of the process of the court.

In paragraph 15 of the decision MW v KC [2005] eKLR, Justice GMB Kariuki rules that:

But this interpretation can be open to abuse. Therefore, in exercising its discretionary power to grant or not to grant this relief, the court will not lose sight of the fact that there is a real likelihood of abuse and must therefore guard against it, but always ensuring that the imperative need to see that the best interest of the child is secured is not relegated. (Paragraph 15)

A DNA test is not a minor procedural step; it is a physical intrusion. It thus affects Article 31 (Right to Privacy) and Article 28 (Human Dignity) of the Constitution, which protects individuals from being forced to undergo medical procedures without a compelling legal basis. Bodily integrity is protected under the Constitution under the rights to privacy and protection of human dignity. Compelling a person to provide a buccal swab or blood sample is a limitation of their constitutional rights. For a court to order this, the applicant must show that the limitation is "reasonable and justifiable in an open and democratic society" under Article 24.

In SWM v GMK [2012] eKLR, Justice Majanja held that ordering a respondent to undertake a DNA test is an intrusion of their right to bodily security, integrity, and privacy. Without a strong prima facie case, the court will protect the individual’s right to refuse.

The courts are likely to limit an adult's right to bodily integrity and privacy if the courts considers that it is in the best interest of the child. In the case of PKM V Senior Principal Magistrate Children's Court At Nairobi & Another [2014] eKLR, the court refused to protect the Petitioners rights, and ordered a DNA test. The court held that:

I agree and while I would be averse to classifying rights in order of priority, there is no doubt in my mind that between the Petitioner's inconvenience at being subjected to DNA testing and the need to conclusively determine the paternity of the child, in the child's interest and certainly in the Petitioner's interest, the child's interest must prevail. For the Petitioner, it would be a minor inconvenience if he attends to DNA testing once but for a child not to know its parents and benefit from their protection and care, the damage may linger for years to come. I choose to protect the baby as opposed to the Petitioner in such circumstances. It would have been very different if the person seeking DNA testing is another adult for the sake of knowing his parentage but the Constitution specifically protects a child and I am upholding that principle.

The courts do not treat DNA casually. The courts have the obligation of balancing the interests and rights of the parties when deciding. There must be an eminent need which justifies the DNA order. Thus, the courts may consider whether or not it is possible for it to reach the truth without invoking such a test.

Paternity disputes sit at the intersection of science, law, and human relationships, and Kenyan courts have made it clear that DNA evidence, while powerful, is not determinative on its own. The decision to compel a DNA test is ultimately a judicial balancing exercise grounded in constitutionalism, evidentiary thresholds, and, above all, the best interests of the child. Courts will not permit DNA testing to be weaponised as a tool for harassment, avoidance of responsibility, or speculative inquiry. Instead, they insist on a disciplined legal approach that safeguards both the dignity of individuals and the welfare of the child.

From the jurisprudence, several practical takeaways emerge for litigants and practitioners:

There is no automatic right to DNA testing. An applicant must establish sufficient cause and a credible factual foundation before the court will intervene. Mere suspicion or curiosity is legally insufficient.

The best interests of the child remain paramount. Where a conflict arises between competing rights, courts will consistently prioritise the child’s welfare, including their right to identity, parental care, and social stability.

Refusal to undergo DNA testing is not neutral. In appropriate cases, it may be construed as unreasonable and may support an inference in favour of ordering the test, particularly where it undermines the child’s rights.

Good faith is critical. Applications perceived as vindictive, opportunistic, or abusive of court process are likely to fail, regardless of the underlying dispute.

Constitutional rights are carefully balanced, not ignored. The right to privacy and bodily integrity will only be limited where there is a clear, justifiable, and proportionate basis for doing so.

Judicial discretion is decisive. Each case turns on its own facts, and courts retain wide latitude to determine whether a DNA test advances justice or undermines it.

In essence, the Kenyan legal position rejects a purely biological determinism in favour of a rights-based, child-centred framework. For practitioners, the implication is clear: success in DNA-related applications lies not in asserting entitlement, but in demonstrating necessity, legitimacy, and alignment with the broader interests of justice.