[2022] KEHC 15955 (KLR)

HBAAA & another v Registrar of Births (Miscellaneous Application E15 of 2021) [2022] KEHC 15955 (KLR) (Family) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15955 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application E15 of 2021

JN Onyiego, J

December 2, 2022

IN THE MATTER OF HH alias HFSS (A MINOR)

AND

IN THE MATTER OF AN APPLICATION FOR CHANGE OF PARTICULARS ON A BIRTH CERTIFICATE

Between

HBAAA

1st Applicant

HM alias ZM

2nd Applicant

and

Registrar of Births

Respondent

Judgment

1. What’s before this court is an originating summons application dated 21st April,2021 and filed on 4th May,2021. It seeks the following orders;a.That the honourable court be pleased to order that the name of FS Said be struck out, cancelled and removed from the Birth Certificate Serial No.xxxxx dated 23/1/2020 and from the Register of Births.b.That this honourable court be pleased to order that HBAA be registered and entered on the Birth Certificate of the minor as the name and surname of the father and in the Register of Births.

2. The application is premised on the grounds therein and the supporting affidavits of HBAA (the 1st applicant) and HMH both sworn on 21st April, 2021.

3. The 1st applicant stated that he entered into a marriage with the 2nd applicant on 28th August, 2018. That he is the natural and biological father to the minor whereas the 2nd applicant is the natural and biological mother of the minor.

4. He further stated that the 2nd applicant gave birth to the minor at Port Reitz Hospital on 28th November, 2016 and that at the time he was out of the country. That upon his return, he discovered that somebody else’s name had been registered as the father to the minor. That upon inquiry, he was informed that the 2nd applicant could not remember giving any particulars of the father for purposes of registration of the birth as she was in a state of delirium by reason of the caesarean operation. That all attempts to have the erroneous registration rectified by the registrar have proved futile.

5. He deposed that the registrar of births has refused to exercise his powers given under Section 28 of theRegistration of births and deaths Actin the absence of a court order. That the name entered in the Birth Certificate is neither known to him nor the 2ndapplicant. He averred that, despite conducting a DNAtest to provide proof of paternity, the Registrar had refused and or declined to effect the changes in the absence of a court order. That as a result, he has been unable to exercise to the fullest extent his parental duties and obligations, including providing the medical and education insurance to the minor without the registration as a father.

6. He averred that the minor has also been unable to enjoy privileges of membership to the Mombasa Bohra Community to which his family belongs and its attendant amenities as he has been unable to prove the relationship between himself and the minor. That it is in the best interests of the minor that the orders sought herein be granted.

7. The 2nd applicant in her affidavit stated that she was a wife to the 1st applicant with whom they have been blessed with two children among them the subject herein. That she was formerly known as ZM before adopting the name HM upon her reversion to Islam. She basically reiterated the content in the 1st applicant’s affidavit thus confirming that on 28th November 2016, she gave birth to the minor herein at port Reiz hospital through caeserian section. That it was after recovery that she discovered a stranger’s name registered as the father to the baby in the Birth Certificate of which she couldn’t recollect giving any particulars of the father for purposes of registration as she was in a state of delirium.

8. In response, the respondent filed a replying affidavit sworn o 25th June 2021 by one Thomas Mathenge a civil Registration officer in civil registration services.

9. He deposed that Section 7(1), 2, 10 and 11 of theBirths and Deaths Registration Act, Cap 149 are the underpinning provisions guiding the Registrar of Births in keeping a Register of Births with the prescribed particulars of every birth being notified to the registrar for registration.

10. He further stated that the responsibility to make genuine declarations lies with the party making such declarations and not with the registrar registering the birth. He stated that the inclusion of the name FS said in the Birth Register of HH Alias HFS said (minor) was based on the information supplied by the informant HM aka ZM the 2nd applicant herein who is also the mother of the child. That she was expected to know the correct particulars of her child including the name of the child’s father.

11. He averred that to warrant the correction of the birth register leading to removal of the name of the father currently in the register will require documentary andDNA proof in support of such request. That the copy of DNAproduced by the applicants was done on their own motion without the supervision of any court. That no legal ground or proof has been provided in this case to warrant the orders sought. He went further to state that Section 14 of the Births and Deaths Registration Actonly provides for alteration of a name of a child and that the period of 2 years as provided in the said section had lapsed.

12. He further averred that if the application is allowed, it will open a door of indefinite opportunity for applicants to alter particulars in Birth Registers at will thereby affecting the integrity of person’s identity acquired at birth.

13. The 2nd applicant filed a further affidavit and stated that at the time of giving birth she was under heavy sedation, having given birth to the minor under caesarean operation. She reiterated that she had no recollection of herself giving the particulars of the father for purposes of registration of the birth.

14. She further stated that the DNAexamination was conducted at the request of the respondent who demanded proof of paternity in order to amend the particulars and to disown the same amounts to shifting of goal posts so as to prejudice them. That the refusal by the applicant to include the 1st applicant in the register is prejudicial to the rights of the minor, who is constantly denied basic needs due to him from his biological father as a result of the errors on the birth certificate. The matter was canvassed by way of viva voce evidence.

15. PW1 Irene Furaha was the analyst from the government chemist analyst’s office who confirmed to the court that they conducted a DNA test on 26th November, 2020 between the applicants and the minor herein. That the results were 99. 99% thus the 1st applicant is the biological father of the minor herein. That she prepared a report on the same on 3rd December, 2020 and produced it as an exhibit.

16. PW2 was Hellen Kasichana Kazungu a finger prints officer working with the registrar of persons who confirmed that the 1st applicant was the holder of id no 13499860.

17. PW3 was the 2nd applicant who adopted her affidavit sworn on 24th May 2021together with her further affidavit sworn on 7th July, 2021. She reiterated her position in the said affidavits. PW4 was the 1st applicant who also reiterated the content of his affidavit sworn on 21st April, 2021.

18. Thomas Mathenge (Dw1) adopted his replying affidavit sworn on 25th June, 2021 as his evidence.

19. Upon closure of the respondent’s case, the parties through their advocates made oral submissions;

20. Counsel for the applicants Mr Furaha submitted that paternity was not in issue. He reiterated the position held by the applicants and submitted that Article 23 of the Constitution grants the court power to correct the misleading record in the child’s birth records. Counsel urged the court to allow the application as prayed.

21. Ms Opiyo counsel for the respondent reiterated the position held by Thomas Mathenge and submitted that in light of the DNA report and the best interest of the minor, the respondent will not be prejudiced if the application is granted.

22. In his rejoinder, Mr.Furaha counsel for the applicants submitted that with the admission by the respondents, that the application is in the interest of the child, the application should be allowed.

23. I have considered the application herein, responses thereof and oral submissions by both counsel. The only issue which does emerge for determination is ; Whether the name of the father in the birth certificate of the minor herein should be altered in the register of births

24. The crux of the matter herein is whether the 1st applicant’s name should be entered in the birth register of the baby.

25. The underpinning provisions of the law in this case are Article 53 of the Constitution, Section 2 and 8 (formerly Section 4 )of the Children’s Act2022 which provide;Article 53(1)Every child has the right—a.To a name and nationality from birth;b.To free and compulsory basic education;c.To basic nutrition, shelter and health care;d.To be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;e.To parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; andf.Not to be detained, except as a measure of last resort, and when detained, to be held—i.For the shortest appropriate period of time; andii.Separate from adults and in conditions that take account of the child’s sex and age.(2)A child’s best interests are of paramount importance in every matter concerning the child.Section 2 of the Children’s Act 2022“best interest of the child" means the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution and section 8 of this Act;Section 8 of the Children’s Act 20221. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—a.the best interests of the child shall be the primary consideration;b.the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.2. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—a.Safeguard and promote the rights and welfare of the child;b.Conserve and promote the welfare of the child; andc.Secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.3. In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity4. The Cabinet Secretary shall issue guidelines to give effect to this section.

26. From the above provisions the paramount factor for consideration in children matters is the best interest of the child principle. The court is also expected to protect the children rights from any abuse. This is supported by the holding in case of In re Baby LWW (Child) [2021] eKLR where the court stated,“The law guards the rights of a child jealously. To my mind this is because children are vulnerable members of our society and although they have parents, it is paramount that the law lends its hand in protecting them to ensure that they can enjoy the rights grated to them by the law. Starting with the Constitution of Kenya 2010 and the relevant statutes thereunder as well as the international instruments, it is evident that there is a common thread running through all these pieces of legal instruments to the effect that the best interests of the child is of paramount importance. Article 53 (1) (a) of the Constitution of Kenya 2010 provides that every child has the right to a name and nationality from birth; and under Article 53 (2), a child’s best interests are of paramount importance in every matter concerning the child…….”

27. In this case, the applicants have sought for orders that the name of FS said be struck out, cancelled and removed from the Birth Certificate Serial No.xxxxx dated 23/1/2020 and from the Register of Births; that HBAA be registered and entered on the Birth Certificate of the minor as the name and surname of the father and in the Register of Births.

28. The applicants have argued that at the time of giving birth, the 2nd applicant was under heavy sedation, having given birth to the minor under caesarean operation. That she suffered delirium and had no recollection of herself giving the particulars of the father for purposes of registration of the birth. That it was after recovery that she discovered the entry of the surname in the minor’s documents.

29. A DNA test was conducted to determine paternity of the child. The report confirmed that the 1st applicant was indeed the biological father of the minor. This was confirmed by PW1. However, the registrar of births declined to make changes to the birth certificate of the minor without a court order.

30. In submission, counsel for the respondent submitted that in light of the DNA report and the best interest of the minor, the respondent will not be prejudiced if the application is granted.

31. In the case ofIn re Baby LWW (Child)(supra) the court stated as follows;“To my mind, Baby LWW will grow and become aware of the circumstances surrounding his birth and the paternity issue. He deserves to know the truth. He has a right to know his biological father. He has a right to a father whether biological or foster. But that father must be willing to be a father to him for his normal and conducive upbringing…”

32. In view of the above citation and facts on record, the 1st applicant herein has been ascertained as the biological father to the minor as established in theDNAreport hence willing to be a father to the minor and to take up his full parental responsibility.

33. Having taken into consideration circumstances under which the wrong name was given and subsequently entered in the register as the father to the minor, and further, considering that DNA test did confirm that the 1st applicant is indeed the biological father to the minor; and further taking into account that the respondent has conceded that the respondent will not be prejudiced by allowing the application, am satisfied that the application is merited and the same is accordingly allowed as prayed.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 2NDDAY OF DECEMBER 2022J.N.ONYIEGOJUDGE