On July 9, 2019 magistrate HM Mbati ordered the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB) to investigate how two government institutions produced conflicting DNA test results, yet samples were obtained from the same subjects.
In that suit, a woman was seeking child support from a man who vehemently denied knowing her or fathering the girl at the heart of the case.
The first court-ordered paternity test was conducted by the Government Chemist and it indicated that the man shared DNA with the child, meaning he was her father.
He still denied, insisting that he had been unable to perform sexually on account of medical conditions whose diagnosis he presented in court.
The court ordered a second test at the Kenya Medical Research Institute (Kemri). From the court record, this test indicated that he was not the father.
But it has now emerged that someone, on two occasions, plucked out the original Kemri results and replaced them with forged documents which showed that the man was not the child’s father.
Upon inquiry by the Nation, Kemri checked its records and found that the results filed in court have two variations that point to foul play — the man’s DNA profile as indicated in the court file is different from what Kemri has, and the conclusion is that he did not father the child.
“The names (of the test subjects) are the same, the lab case number is the same, but the (man’s) DNA profile is different. The report is strange, any DNA expert would clearly see it,” A DNA expert at Kemri said in an interview.
Kemri said the man’s DNA profile in the court file could have either been cooked up by whoever forged the document, or a copy of someone else’s DNA profile was used.
Either way, the forged document achieved its purpose of stalling the court case and frustrating justice.
While the e-filing system introduced by the Judiciary in 2020 could have plugged such opportunities for subversion of justice, there could be people paying for sins they did not commit while the actual perpetrators smile away.
After sending its initial results, the courts asked Kemri to resend its findings. The institution sent a certified copy, meaning one with a seal and stamp giving the document authority.
But that, too, was somehow plucked out of the court file and replaced with a bogus report showing that the man did not share any DNA sequences with the child.
A simple paternity test, and what is usually a straightforward court process, had just been thrown into confusion.
To the court, two government institutions tasked with unravelling complex situations using DNA tests had given conflicting results.
Following the confusion, with each party insisting that the result they got was accurate, the court ordered that the conflicting tests be sent to the KMLTTB for investigation and two fresh tests.
The two fresh tests would include one from a government agency and another from a private practitioner.
The turn of events in that case has put into question the number of cases that could have been tilted through underhand tactics, especially before the Judiciary introduced its e-filing system which came into place in 2020 at the height of the Coronavirus pandemic.
That case was just one of 1,745 cases involving child support that were filed in 2019 alone. The integrity of outcomes in some of those cases could be thrown into doubt, in the event that there were other instances of interference with court files, particularly to alter DNA test outcomes.
The Government Chemist’s results were filed in court on February 22, 2019 and were to inform magistrate Mbati how to rule on child support rates in the event the man was to be proven the father.
The woman claimed that the child’s father had abandoned his fatherly duties despite being a well-paid bureaucrat.
For his part, the man insisted that he did not know her, but said in the same affidavit that the two hail from the same village. He added that the woman was married to another man.
Biologically, a child’s DNA is a 50-50 split of their mother’s and father’s genetic material. To confirm if two individuals are related, scientists run tests on DNA sequences carried by the subjects in question. If some specific DNA sequences are shared, then the subjects are deemed to be related.
In paternity tests, scientists trace the DNA sequences that each parent has passed on to the child, and use that to reach a conclusion.
“By examining DNA from a person and their parents, it is possible to determine the elements of DNA gained from their biological mother and those gained from their biological father,” the Government Chemist said in its report to the court.
DNA tests have become a critical part of Kenya’s justice system, as they are used to determine many civil and criminal cases.
For criminal cases, this means that freedom or incarceration of several individuals is at stake, while huge financial implications can be unfairly borne or denied to litigants on account of false results.
Shadrack Kiprono, a lawyer based in Nairobi, told the Nation that the impact of DNA results is immense in both criminal and civil cases.
Mr Kirpono holds that for good measure, second opinions are advised in instances where DNA tests have been conducted.
“It may be important to seek a second opinion or DNA test for purposes of ruling out mistakes or falsehoods. We have had instances where a party is condemned to maintain a child with no biological ties and in the same vein, a person given inheritance under false pretence. Second opinions help rule out instances of inaccuracies and falsity,” Mr Kipkorir said.
“In criminal law practice, the impact of false DNA results is quite immense as this goes to the identity of the accused person. It can lead to wrongful convictions or acquittals. This as a matter of consequence, dents the credibility of the justice system in its entirety. Imagine a criminal being let go or an innocent person being convicted. This justifies why the standard of proof in criminal cases is that of beyond reasonable doubt,” Mr Kipkorir added.
The case has since slipped into limbo, as the mother opted to not pursue it further. It, however, indicates how use of forged documents could have played a role in miscarriage of justice.
