Wakilii

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

High Court · [2023] UGHCFD 110 · 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, seeking exhumation of deceased to include all alleged children in testing
Decision
Application for review partly allowed; exhumation order granted for paternity testing of two minor applicants only

Observed later treatment

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Holding

The court held that children born during wedlock are presumed to be children of the marriage and need not be DNA tested absent proof otherwise. Adult children cannot be compelled to undergo paternity testing. However, where minors claim to be beneficiaries of an estate and their paternity is disputed, exhumation of the deceased may be ordered to determine paternity in the child's best interest and to avoid multiplicity of suits.

Outcome

Application for review partly allowed; exhumation order granted for paternity testing of two minor applicants only

Facts

Two minors through their next friends applied to review a court order directing DNA testing on them alone. They sought exhumation of the deceased Enoch Kalema to test all eight children mentioned in the estate administration petition, claiming fairness required testing all alleged children. The respondent widow opposed, stating she had disclosed only her six children born during their valid marriage in her letters of administration petition. The applicants had sued challenging the grant, claiming they were excluded beneficiaries. The respondent disputed the minors' paternity and had obtained the original DNA order. The applicants based their review application on rumours that not all the respondent's children were fathered by the deceased, though they provided no substantiating evidence and some of the respondent's children were now adults.

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 of the court's order of 12th September 2023.

Orders

  • Application partly allowed.
  • An order for exhumation of the deceased to determine parentage is hereby 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 day of 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

Family Law — Paternity — Presumption of Legitimacy — Children Born in Wedlock
Any child born during wedlock is presumed to be the legitimate child of that marriage (pater est quem nuptiae demonstrant). DNA testing is not required to prove paternity where there is clear evidence of a valid and subsisting marriage at the time of the child's birth, unless proof has been adduced during the marriage that the alleged child does not belong to the husband.
Family Law — Paternity Testing — Adults — Right to Privacy
The court will not order DNA testing to determine the paternity of an adult who does not complain about his or her parenthood, as such an order would violate the right to privacy. An adult is presumed to know his or her true father, and where paternity is in contention, the court cannot order DNA testing unless the adult surrenders himself or herself for testing upon application by one of the parties.
Evidence — Burden of Proof — Civil Matters — Balance of Probabilities
In civil matters, he who alleges bears the burden to prove his or her case on a balance of probabilities. The court will not act on rumours; allegations must be substantiated with evidence.
Family Law — Paternity Testing — Minors — Best Interests of the Child
Where a person is a minor and his or her paternity is in issue, the court may order DNA testing in the overall interest of the child to ascertain where he or she belongs. Children have a constitutional right to know and be cared for by their parents or those entitled to bring them up.
Civil Procedure — Review — Aggrieved Person — Standing
Under Section 82 of the Civil Procedure Act, an applicant for review must demonstrate that they are an aggrieved person who has suffered a legal grievance or whose legal interests are adversely affected by the order sought to be reviewed. The court must determine whether the applicant has standing before considering the merits of the review application.
Civil Procedure — Review — Error Apparent on Face of Record — Definition
An error apparent on the face of the record must be self-evident and patent, not one that requires a process of reasoning to detect. The error must be manifest and strike one by mere looking at the record without requiring any long drawn process of reasoning on points where there may conceivably be two opinions. No error is apparent where one has to travel beyond the record to establish it.
Family Law — Paternity Testing — Exhumation — Discretion of Court
The court must exercise its discretion to order DNA testing, including exhumation, only after balancing the interests of the parties and on due consideration of whether DNA testing is eminently needed for a just decision. DNA should not be directed as a matter of course or routine whenever such request is made. However, where minors claim estate entitlement and their paternity is disputed, exhumation may be ordered to determine paternity in the child's best interest and to avoid multiplicity of suits.

Legislation cited (13)

Cases cited (6)

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

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Gasa Zoe and Another v Namara (Miscellaneous Application 1205 of 2023) [2023] UGHCFD 110 (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.