The paternity fight

Sometime in May this year, a 21-year-old woman who works at a private company in Nairobi was in the news when she sued a lawmaker for Sh1.2 million in child support.

She told the court that she met the MP in Nakuru two years ago, where he supposedly promised her a job, a car and a house if she bore him a child. She agreed to the arrangement, but apparently the lawmaker abandoned her as soon as he found out she was pregnant.

The woman wanted the MP to provide for the baby, arguing that he is obliged to do so under the Children’s Act. In his defense, the legislator said he was a happily married family man and denied claims that he had promised to give the woman “goodies” if she bore him a child.

He argued that those were lies meant to support material greed and extortion, and added that the woman was a stranger whom he had only met twice – once at a business meeting at his private office in Nakuru and later at a social event. This case is one among many in a rising trend since the Children’s Act came into force in 2001.

Quick results

As such cases increase, men are discovering that lowering their pants for a moment of pleasure also means a potential child support case.

While men could get away with fathering children and not paying a cent for their upkeep in the past, now women are refusing to shoulder the financial burden of raising children alone.

Maria Mbeneka, a family law advocate, has seen a rise in custody and maintenance cases initiated by women in the past five years, something she attributes to greater awareness of the law and the shorter time it takes to have a paternity test done.

Previously, one had to wait for months for the results of the DNA test, but now one can get the results within four days, especially from private forensic laboratories.

However, many women still avoid the court process because it is expensive, time consuming, emotionally draining and traumatising for the children involved.

“It takes bravery to initiate such a case because it is usually very acrimonious and at the end of it, someone feels that he or she was treated unfairly,” she explains.

It is only when all other means of persuading the man to take responsibility for the child he fathered fail that many women are forced to file a child maintenance case, during which the judge may order a DNA test to verify whether the man is the biological father of the child.

Most of those tests are done at the Government Chemist, where records show an increasing demand. In 2002 there were less than 50 tests of that nature carried out, while last year 207 tests were done. This year (as per July 16) 140 have been carried out.

But some men do not wait to be dragged to court; instead, they own up and begin to pay upkeep for their children after receiving demand letters from lawyers or after children officers intervene.
Child exploitation?

However, some will not give in without a fight. Kahiga Waitindi, a lawyer, says that many men do not easily agree to maintain their children, for fear of being seen to have conceded without a fight. Such men claim that the women involved want to use children to make money out of them.

While Maria Mbeneka, the lawyer, argues that most women sue because they are aware that fathers have to take responsibility too, she does not rule out the possibility of a woman doing it for the money. “Most women sue as a last resort after they have tried settling the matter out of court unsuccessfully,” she says.

“Moreover, children need to eat, go to school, and get medical care among other things. All that needs money and the law recognises that both parents have a duty to ensure that the child receives that support,” Maria explains.

For men who fear that their women will take them to the cleaners in the name of child support to fund lavish lifestyles, Maria assures them of some legal protection.

“It is a misconception that the court will automatically favour the woman. She has to justify her expenses and is also required to share part of the financial responsibility as a parent. Moreover, the man’s capability to pay the amount she is asking for is also put into consideration.”

However, men’s fears are not entirely unfounded. Ann* admits that she has exploited the Children’s Act to get money from men, and adds that she does not need to work because she leads a comfortable life compared to some of her employed peers.

She has successfully sued for maintenance from three different fathers for her three children, who are all in her custody.

Each DNA test proved that they were the biological fathers and the court ruled in her favour. The first father holds a senior position in the army, the second works in the aviation industry and the third is a businessman.

Bitter-sweet victory

“They all remit a tidy six-figure sum into my account as child maintenance, which allows me to enjoy a good life with my children,” she boasts.

To avoid falling prey to such women, Kahiga Waitindi says that men should view every sexual encounter as a potential child support case and take the necessary precautions.

Further, Morris Kaburu, a Nairobi-based lawyer, adds that a woman cannot sue two men for child support for the same child.

“If a child has both a biological father and a step-father who had assumed parental responsibility, the woman has to decide who she wants to sue for maintenance. She cannot sue both because her motive would be questionable,” he says.

On finding that the court process is not a neat and rosy affair, some decide to abandon the case and reconcile while others decide to settle out of court and move on. But those who go the whole hog bear the brunt of the usually vicious and drawn out cases that often leave one feeling shattered.

Judy Wambui, 26, feels emotionally drained and exposed after her bid to have her child recognised as Samuel Wanjiru’s son was aired widely in the news.

She got entangled in a court case when the late Olympic marathon champion died last year. She was pregnant but worried that her son would be locked out of enjoying his father’s wealth.

“I knew my son was Wanjiru’s, but there were people saying that he wasn’t, so I moved to court to have a DNA test done to ensure that he would get a share with the rest of Wanjiru’s children,” she says.

Judy is happy that the DNA test vindicated her, but is paying a price for her persistence: She cannot get a job as an accountant because most employers tell her that she needs to conclude her court cases first so that she can concentrate on working, and she also has to bear with the rumour mills.

“Strangers gossip about me, call me a gold-digger and don’t understand why I am doing this, but I do it for my son,” says Judy, adding, “I will only have peace of mind when the case ends, and I am sure my baby will get his fair share of his father’s wealth.”

But unlike the determined Judy, some women forgo the bitter court process. By the time Rosemary Gathoni, a mother of two, left her violent husband three years ago, she did not want anything to do with him.

She could have gotten a tidy sum to maintain her children from her husband who worked with a leading oil marketing company but she opted to let it go.

“I was fed up and I wanted to forget about him, and a maintenance case would only have ensured that I remained entangled with him. I wanted to prove that I could survive without him,” explains Rosemary, who was three months pregnant and jobless when she left.

Compelled fatherhood

Although Rosemary, an accountant, would not want the father of her children to provide any financial assistance, she supports women who sue for child support, saying it is likely to discourage careless men from siring children without a second thought.

Unfortunately, the court can only compel a man to pay for upkeep and cannot compel him towards the social behaviour of being a father.

And even in cases where one has been awarded maintenance, the man may play cat and mouse games, refusing to pay.

Take the case of Rossana Pluda Moi Vs Philip Moi. Rossana was awarded Sh250 000 as maintenance last year.

To date, she is still chasing after her estranged husband Philip, from whom she sought a divorce, to pay up the amount in arrears.

While it might seem that only women rush to DNA clinics seeking proof of parenthood, men do so too occasionally, especially when they suspect that they are not the biological fathers of a child, and want proof to stop providing for the child. Unfortunately for such men, a negative DNA test does not necessarily absolve one from fatherhood.

In March, a Mombasa court ordered a man to pay Sh14 883 as monthly maintenance for a10-year-old who is not his biological child, for the simple reason that he had at one time assumed parental responsibility.

So if a man has ever acted as a father to a woman’s children, he cannot run from that duty, regardless of the fact that he is not the biological father.