Wakilii

Gasa and Another v Namara (Miscellaneous Application 1205 of 2023)

High Court · [2023] UGHCFD 163 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of court order directing DNA paternity testing, arising from a civil suit challenging grant of letters of administration
Decision
Application partly allowed with order for exhumation granted to enable DNA paternity testing of minor applicants

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Holding

The High Court held that while children born in wedlock are presumed to be the offspring of the husband and wife, minors claiming to be beneficiaries of an estate must prove their paternity. The court granted an order for exhumation of the deceased to obtain DNA samples for paternity testing of the minor applicants, finding that such testing was necessary to determine beneficiaries of the estate, despite the absence of a clear error on the face of the record justifying review.

Outcome

Application partly allowed with order for exhumation granted to enable DNA paternity testing of minor applicants

Facts

Two minors, through next friends, applied to review a court order directing DNA testing to determine their paternity. The minors claimed entitlement to share in the estate of the late Enoch Kalema as his children. The respondent, the widow and administratix of the estate, had obtained letters of administration listing only six children born during her marriage to the deceased. She disputed the minors' paternity, having never been told by the deceased that they were his children. The original DNA order directed testing of the two minor applicants only. The applicants sought review to include all eight alleged children in DNA testing and to exhume the deceased's body for comparison. The respondent opposed, arguing that children born in wedlock are presumed to be children of the marriage and that the minors bore the burden of proving their own paternity. The court had previously ordered DNA testing of the two minor applicants, which prompted this review application.

Issues

  1. Whether the applicants are aggrieved persons within the meaning of Section 82 of the Civil Procedure Act.
  2. Whether the application meets the criteria for review under Order 46 Rule 1 of the Civil Procedure Rules.
  3. Whether the court should order exhumation of the deceased's body to obtain DNA samples for paternity testing.

Orders

  • An order for exhumation of the deceased to determine parentage is granted.
  • The remains of the late Enoch Kalema shall be exhumed to obtain samples for conducting the paternity examination.
  • The paternity test shall be conducted by the Government Analytical Laboratories, Wandegeya, Kampala District.
  • The minors Gasa Zoe Atara and Mukisa Nathan through their next friends and each child's biological mother shall be available for testing within 7 days from the date of this ruling.
  • The Paternity test results shall be submitted to Court by 15th January 2024.
  • The costs of the Paternity test shall be met by the estate of the late Enoch Kalema.
  • The process of the Paternity test shall be monitored by both parties and their respective counsel.
  • Each party shall bear its own costs of this application.

Rules and key headnotes

Evidence — Paternity — Presumption of legitimacy — Children born in wedlock — Pater est presumption
Section 112 of the Evidence Act provides that a child born during a valid marriage or within 280 days after its dissolution is conclusive proof that he is the legitimate son of the husband, unless it can be shown that the parties had no access to each other when the child could have been begotten. DNA testing is not needed to prove paternity if there is clear evidence of a valid and subsisting marriage at the time of the spouse's death, unless proof has been adduced during the marriage that the alleged child does not belong to the husband.
Civil Procedure — Review — Grounds for review — Aggrieved person — Section 82 Civil Procedure Act
Under Section 82 of the Civil Procedure Act, an application for review may be brought by any person considering himself aggrieved by a decree or order. To qualify as an aggrieved person, the applicant must have suffered a legal grievance and the order must be against the applicant or his legal interests. Applicants seeking DNA testing to prove their entitlement to inherit are not aggrieved by an order that requires them to prove their paternity through such testing.
Civil Procedure — Review — Error apparent on face of record — Definition and scope
An error apparent on the face of the record must be self-evident and not one that has to be detected by a process of reasoning. No error can be an error apparent where one has to travel beyond the record to see the correctness of the judgment. It must be a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish.
Evidence — DNA testing — Court's discretion — Best interests of the child
The court must exercise its discretion to order DNA testing only after balancing the interests of the parties and on due consideration whether for a just decision in the matter a DNA test is eminently needed. DNA should not be directed by the court as a matter of course or in a routine manner whenever such request is made. Where a person is a minor and his or her paternity is in issue, the court can order the conduct of DNA testing in the overall interest of the child, to ascertain where he or she belongs.
Family Law — Paternity testing — DNA testing of adults — Right to privacy
The court will not order DNA testing to determine the paternity of a full-grown adult who does not complain about his or her parenthood, as that would be a clear violation of the right to privacy. Conversely, an adult is presumed to know his or her true father. Where the paternity of an adult is in contention, except the adult surrenders himself for a DNA test upon the application of one of the parties, the court cannot and should not order a DNA test to be conducted.
Succession & Estates — Letters of administration — Determination of beneficiaries — Burden of proof on claimants
Where persons claiming to be children of the deceased seek a share in the estate, they bear the burden to prove their paternity and entitlement to inherit. In all civil matters, he who alleges bears the burden to prove his case on a balance of probabilities. It is the case of those claiming to be beneficiaries to prove that they merit and meet the category of beneficiaries to the estate.
Family Law — Paternity testing — Consent requirements — Role of mother and guardian
The biological mother of a minor child is required to consent on behalf of the minor to have a DNA test conducted, unless there is a court order or guardianship order in place stating otherwise. Next friends presenting minors for paternity testing should avail the mothers of the children before the examination is conducted.

Legislation cited (13)

Cases cited (6)

  • Re Nakivubo Chemists (U) Ltd (1979) HCB 12
  • Mubuuke v Uganda Electricity Board (Miscellaneous Application No. 98 of 2005)
  • MMM v ENW M.A No. 7 of 2016
  • BPs vs CS Civil Appeal No. 6222 - 6223 of 2010
  • Independent Medico Legal Unit v Attorney General of Kenya (Application No. 2 of 2012)
  • MK Creditors Ltd v Owora Patrick (Miscellaneous Application No. 143 of 2015)

Full judgment

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Gasa and Another v Namara (Miscellaneous Application 1205 of 2023) [2023] UGHCFD 163 (27 November 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.