A High Court judge has called on Parliament to enact a law regulating the use of DNA testing, saying that courts are increasingly being forced to resolve paternity disputes without a clear legal framework.
Justice Reuben Nyakundi said DNA profiling has become a recurring feature in disputes involving inheritance, child custody and matrimonial property, making it necessary for lawmakers to establish clear rules on when courts can compel testing and how genetic information should be handled.
He said the proposed legislation should ensure DNA technology is used in a manner that complies with the Constitution while safeguarding the rights to privacy, dignity and bodily integrity.
‘I have in mind the necessity of procedures on DNA profiling recognised by law to ensure that the procedure is just, fair and reasonable,’ Justice Nyakundi said.
The judge said the legislative scheme enacted by Parliament should meet the threshold within the constitutional framework of Article 24 on the limitation of rights.
The judge observed that succession disputes involving contested paternity have become some of the most litigated matters before courts, particularly where children born outside marriage seek recognition as beneficiaries of deceased parents’ estates.
In the judgment, Justice Nyakundi said courts should only order DNA testing after a claimant establishes a prima facie case under Section 107 (1) of the Evidence Act and where the welfare and best interests of the child outweigh competing constitutional rights such as privacy.
Justice Nyakundi made the remarks while hearing a dispute over the estate of Kipyego Kogo Chepkwony, who died without a will in 1994, leaving behind an extensive estate that included land, shares, bank investments and several motor vehicles.
The estate was administered by his widow, Veronica Jepsuge Chepkwony, who obtained letters of administration in 1996. The grant was confirmed in 2017 and the assets distributed among the beneficiaries listed in the succession proceedings.
Years later, Edna Chepkoech Tanui moved to court claiming she had been excluded from the inheritance because she was born out of wedlock.
She told the court that Chepkwony was her biological father and had maintained her through her mother, Rose Tanui. She claimed she was omitted from the succession proceedings after the widow allegedly concealed her existence from the court.
Ms Tanui said she grew up in difficult circumstances, failed to access quality education and now survives in rented accommodation despite the deceased having left behind a substantial estate.
She further alleged that family meetings, some chaired by the local chief, had acknowledged her claim and that the widow had at one point agreed to compensate her with Sh500,000 and two acres of land, an agreement she said was never honoured.
The woman also blamed her former advocate for failing to prosecute an earlier application and argued that crucial evidence was never placed before the court.
The widow opposed the application, arguing that Ms Tanui had not produced any documentary evidence to establish paternity, such as a birth certificate or proof that the deceased had acknowledged her as his child.
She also argued that reopening succession proceedings nearly three decades after the deceased’s death would undermine the principle of finality in litigation since the estate had already been distributed.
The widow further maintained that compelling DNA testing would unjustifiably interfere with the constitutional rights to privacy, dignity and bodily integrity and that the applicant had not established a sufficient factual basis to warrant such an intrusive order.
Justice Nyakundi acknowledged that Kenyan law remains unclear on compulsory DNA testing because there is no specific legislation governing the subject, leaving courts to determine each case individually.
The judge noted that previous decisions have not always been consistent, either in their reasoning or in the circumstances under which DNA tests have been ordered.
‘One cannot miss the level of inconsistency either in the findings or on the basis upon which tests have been ordered,’ he said.
The judge, however, observed that courts have consistently recognised the need to balance the search for truth through scientific evidence against the constitutional rights of those required to undergo testing.
He said the prevailing judicial position is that courts may compel adults to submit to DNA testing where it is necessary to determine paternity and where doing so serves the best interests of a child or resolves a genuine inheritance dispute.
Justice Nyakundi found that Ms Tanui had established sufficient grounds to justify scientific testing despite the competing constitutional interests.
He directed that DNA profiling be conducted within 45 days from the date of the ruling, at either the Government Chemist’s Kisumu office or the Kenya Medical Research Institute (KEMRI) laboratory in Eldoret.
The tests, he said, should be undertaken using DNA samples from the deceased’s acknowledged children to determine whether Ms Tanui is biologically related to them.
The outcome of the DNA analysis will determine whether Ms Tanui qualifies as a beneficiary of the estate and whether the succession proceedings should be revisited.