A DNA test can establish that a person is not a child’s biological parent, but it does not automatically settle questions of legal responsibility, maintenance or compensation.
For someone who has spent years paying school fees, medical bills and other expenses believing they were the child’s biological parent, the discovery raises questions about recovering the money, suing the person who misled them and complying with any existing maintenance order.
Lawyers Njuguna Muri and Purity Muhindi of Muri Mwaniki Thige & Kageni LLP (MMTK Law) say the answers depend on whether there was deliberate deception, whether parental responsibility had been assumed and whether a court has made orders.
A negative DNA result, they caution, does not by itself prove that someone lied or release a person from an existing maintenance obligation.
Biological vs legal parenthood
Ms Muhindi says Kenyan law distinguishes biological paternity from legal parenthood. The Children Act, 2022 defines a parent as the mother, father or a person conferred with parental rights by law. Legal paternity concerns recognition by law; biological paternity is the genetic relationship established through DNA testing.
“These duties are not necessarily tied to the existence of a biological relationship with the child,” she says, referring to parental responsibility, which includes providing for a child’s maintenance, education, healthcare and general welfare.
Under section 34(6) of the Children Act, a man who marries a child’s mother assumes parental responsibility for her child even without formal adoption. Section 118 of the Evidence Act presumes that a child born during a valid marriage is the husband’s, unless the couple had no access to each other when the child was conceived.
A person may ask a court to determine paternity, clarify their legal relationship with the child and make appropriate orders on maintenance or birth records.
Ms Muhindi cites MW v GWM [2025] KEHC 3661 (KLR), in which the High Court set aside maintenance orders against a man after DNA evidence established that he was not the child’s biological father.
But a negative test does not guarantee the same outcome in every case. In PGM v RMB (2021), two laboratories excluded a man, but the High Court in Kisii ordered a full hearing after the mother argued that he had treated the child as his own.
A person deliberately misled about a child’s paternity may consider a civil claim for fraudulent misrepresentation, also known as deceit.
Mr Muri says such a claim is legally possible but would break new ground in Kenya. “There is no reported Kenyan judgment awarding deceit s against a mother over paternity,” he says.
In Kakad v Anne (2025), a business dispute, the Court of Appeal distinguished innocent, negligent and fraudulent misrepresentation. An honest belief differs legally from a knowingly false statement intended to deceive.
A claimant must prove that a false representation was made, that the other person knew it was false or was reckless about its truth, and that reliance caused actual loss. Evidence could include messages, admissions, timelines, a concealed earlier DNA test or an admission by the biological father.
Citing Karanja v Kamau (2024), Muri says fraud must be specifically pleaded and strictly proved. The standard is higher than the balance of probabilities but lower than proof beyond reasonable doubt.
A negative DNA result alone is insufficient: someone genuinely uncertain about paternity, or honestly believing the claimant was the father, may not have committed fraud.
Compensation requires proof of deception, reliance and identifiable loss; it does not follow automatically from a DNA result. Ms Muhindi says a claimant would need evidence such as receipts, school fee statements, medical bills and bank records to show the financial commitments made in reliance on the representation.
In NTA v SVK & 2 Others [2020] eKLR, the High Court awarded a man Sh700,000 after he discovered that a child born during his marriage was not biologically his: Sh400,000 for mental anguish, stress and embarrassment, and Sh300,000 for pregnancy and delivery expenses. It also ordered correction of the birth records.
Mr Muri cautions that the decision is not a general precedent for recovering years of maintenance. The award was made against the biological father, not the wife, who was not a party. It followed an unanswered cross-petition, and the judge relied on Article 23 of the Constitution, rather than the law of tort. “It is one High Court decision, and it does not bind other High Court judges,” he says.
There is no reported Kenyan decision ordering a mother to refund maintenance after a negative DNA test. Mr Muri considers a claim against the person whose deception caused the loss more viable than seeking repayment of every expense incurred raising the child.
Under section 4(2) of the Limitation of Actions Act, an action founded on tort generally has a three-year limitation period. Under section 26, where fraud is involved, time may run from its discovery, or when it could reasonably have been discovered.
Ms Muhindi says medical or psychological reports and treatment records may help establish the harm. Mr Muri says hurt feelings without evidence are unlikely to persuade a court.
He suggests preserving counselling or medical records and identifying witnesses who can speak to the humiliation or distress experienced.
A person ordered by a court to pay child maintenance cannot simply stop paying after receiving a negative DNA result.
Ms Muhindi says they must apply for variation or discharge, relying on the DNA evidence and surrounding circumstances. Payments must continue until the court changes the order.
Section 119 of the Children Act allows a court to vary, modify or discharge a maintenance order, or suspend it temporarily. A DNA result may support an application, but the person should obtain the court’s direction before stopping payments.
Under section 121, a court may remit arrears after hearing the child’s side. Stopping payment without an order risks enforcement, including attachment of salary.
The law recognises that a person may assume a parental role despite having no biological relationship with the child. Section 114 of the Children Act allows a court to order maintenance from someone who has accepted the other parent’s child as a child of the family, even without formal adoption.
The court considers how long the person maintained the child, why they assumed responsibility, whether they knew the child was not biologically theirs and whether another person is liable for maintenance.
Mr Muri says someone who knowingly raised a child for years may find it harder to walk away from parental responsibility than someone recently identified as a parent through deception. Kenyan courts have yet to settle how deception should be weighed against years of parenting; the child’s welfare remains central.
Without deliberate deception, a claim for fraudulent misrepresentation would ordinarily fail. The person may still seek a paternity determination, correction of birth records and appropriate maintenance orders.
DNA exclusion does not extinguish the child’s right to maintenance. Article 53 of the Constitution and the Children Act put the child’s best interests at the centre of the dispute. Section 32(4) also provides that parental responsibility may not be relinquished or assigned.
In AWM v LNG (2024), the High Court described maintenance as a constitutional right that cannot be taken away. Responsibility may fall on the biological father, mother or another person who has legally assumed it.
The lawyers advise preserving DNA reports, messages about paternity, birth records and proof of financial support, including school fees, medical bills, bank statements and M-Pesa transactions.
Where paternity is disputed, Mr Muri recommends court-supervised DNA testing. Anyone subject to a maintenance order should apply for its variation or discharge rather than stop paying unilaterally.
Both lawyers emphasise that the child’s welfare should remain central throughout the process, and that disputes between adults should not expose the child to unnecessary harm or deprive them of care and protection.
