A 24-year-old woman this week sued renowned local billionaire businessman Jimnah Mbaru for abandoning a child they had together. The woman who was identified as Elizabeth Kamiti is seeking more than Sh320,000 per month for the upkeep of the child. She is also seeking Sh600,000 per year for the minor’s school fees. According to court documents that were filed by advocate Suiyanka Lempaa on behalf of the woman, Mbaru has failed to financially support the child. He has also refused that his name is included in the baby’s birth certificate as the child’s father. It is alleged that Mbaru got into a sexual relationship with Kamiti in 2017. He was 70 and in July 2018, Kamiti had Mbaru’s child at the age of 20. After the baby was born, Mbaru appointed advocate Eric Kaburu as a putative father for the child. A putative father is a man whose legal relationship to a child has not been established, but who is alleged to be or claims that he may be the biological father of a child of a woman to whom he was not married at the time of birth.
A putative father may be obligated to support the child, either by voluntary agreement or court order. According to Kamiti, Kaburu was supposed to pay Sh50,000 monthly for the child's upkeep under a Memorandum of Understanding (MoU) dated September 10, 2020. This amount was however never paid.
"Our instructions are that you are the biological father of the child and that on or about September 1 2020, you instructed or gave power of attorney to Eric Kaburu to be a putative father to the minor," Kamiti said in a demand letter signed Mugeria, Lempaa & Kariuki Advocates dated July 28, 2022.
Kamiti argues that by donating his parental responsibilities through power of attorney, Mbaru was treating his biological child as a property of chattel goods.
Whereas the child support money Kamiti is demanding from Mbaru adds up to Sh4.4 million per year, it is not the money that has shocked many people. After all, these figures would seem like a drop in the ocean for the billionaire founder of the Dyer and Blair Investment Bank. What has left people with open mouths is the alleged extent the billionaire has gone to exterminate any linkage with the child.
It has also raised questions on whether a father can donate his parental responsibilities to someone else who acts as a putative father.
According to Sheila Sabaya, an Advocate of the High Court who specialises in family law, the new Children’s Act 2022 gives equal parental rights to both the father and mother regardless of their marital status.
“In balancing the child’s best interests, the parent can then appoint a testamentary guardian and or have a guardian appointed for their child,” says Sabaya. She explains that a court usually appoints a guardian to represent the child’s best interests where the matter involves a dispute over custody, child support, divorce or even adoption.
On the other end, a testamentary guardian is a person a parent may appoint to look after your child in the event of your death.
By the time an alleged biological father decides to appoint a putative father, Sabaya says that he will have become content that he is the biological father.
“The principle is usually that you cannot donate something you don’t have. You cannot donate your parental responsibility to an advocate through a power of attorney (putative father) if you’re not the actual father,” she says.
At the same time, the parental agreement the mother and the father of the child willfully enter into can be legally accepted by the court. “The court can recognise a parental responsibility agreement between the man and woman in regard to their child even if this agreement was signed out of court. The agreement will be required to meet the threshold of being legally binding which includes being signed by the witness of a legal children’s officer,” says Sabaya.
However, the father cannot be forced to give the child their name. “The child is usually entitled to an identity. However, this identity is not limited to a name only. This means that the court will not micro-manage how the parents decide to name their child,” says Sabaya.
In most instances, the presence of the father’s name on the birth certificate reinforces parental responsibility to the father.
“Even if a man ‘unknowingly’ assumes parental rights and responsibilities and has the child’s birth certificate carry his name as the father, within the meaning of Section 24(1) of the Children Act, it is presumed that he has taken up parental responsibilities the moment that child was born. He is therefore bound to bear parental responsibility towards the child as he would have as the biological father,” says Harriet Onyiego who is an Advocate of the High Court.
Where there is doubt about who is the biological father of the child, the court can make an order to compel a putative father to undergo a DNA test to determine paternity. In the MW vs KC (2005) matter, the court identified the conditions for this as including the likelihood of the putative father being the child’s biological father, and the violation of the child’s right to know their father.
There are other limitations that you may face during a child support petition. For instance, when petitioning against parental negligence the court will not force your child’s father to spend time with their child if he is not interested.
“The court will only enforce an order for visitation if one parent cites that they have been denied this right,” says Ms. Sabaya. This circles back to the best interests of the child.
“A father who has been compelled to spend time with their child might turn violent and abusive against them. This is an example of why visitation by a father who wants nothing to do with the child will never be ordered. It’s against the child’s best interest,” she says.
Biological father: The father whose DNA a child carries is usually referred to as the child’s biological father.
Putative father : An alleged biological father of a child who has no legal father.
Natural father under the equitable-parent doctrine : A man who is not the biological father of a child born or conceived during wedlock, but who is married to the child’s mother.
Legal father : A man whom the law has presumed to be a child’s father or a man whom the court has determined to be a child’s father.
