[2022] KEHC 794 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

ADOPTION CAUSE NO. E015 OF 2020 (O.S)

IN THE MATTER OF THE CHILDREN ACT NO. 8 LAWS OF KENYA

AND

IN THE MATTER OF REMOVAL/RECTIFICATION OF PARTICULARS IN THE BIRTH CERTIFICATE OF DG (CHILD)

AND

IN THE MATTER OF REGISTRAR OF BIRTHS AND DEATHS DEPARTMENT OF CIVIL REGISTRATION NAIROBI

AND

REGISTRAR OF BIRTHS AND DEATHS....................................................1ST DEFENDANT

DEPARTMENT OF CIVIL REGISTRATION................................................2ND DEFENDANT

OFFICE OF THE ATTORNEY GENERAL....................................................3RD DEFENDANT

MWK (being sued as the mother and the next of kin of DG)............................4th DEFENDANT

RULING

1. Before this Court is the Originating Summons dated 29th July 2020by which the Applicants JKN seeks the following orders:-

“1. Spent.

2. THAT this court be pleased to direct the 1st and 2nd Interested parties to remove and strike out the name of JKN from the Birth Certificate of DG (the child).

3. THAT the child be issued with another Birth Certificate which does not bear the names KJN.

4. THAT the costs of this application be provided for.

5. THAT costs of this application be in the cause.”

2. The summons which was premised upon Article 53(e) of the Constitution of Kenya, Section 4of theChildren’s Act, Sections 1A, 1B, 3, 3Aand37 of the Civil Procedure Rules, Cap21 Laws of Kenya, was supported by the Affidavit of even date sworn by the Applicant.

3. The 4th Defendant MWK(being sued as the mother and the next of Kin of DG) did not oppose the application.

4. The 1st, 2nd and 3rd Respondents did oppose the application through the Replying Affidavit dated 10th September 2020 sworn by MILKAH ODALO a Civil Registration Officer in the Ministry of Interior and Co-ordination of National Government.

5. The application was canvassed by way of written submissions. The Applicant filed written submissions dated 1st November 2021 whilst the 1st, 2nd, 3rd Respondents filed the written submissions dated 8th November 2021.

BACKGROUND

6. The Applicant got married to the 4th Respondent on 8th August 2009 at the [Particulars withheld] ChurchinNairobi. Their union was blessed with one child a daughter born on 8th March 2010. The 4th Respondent had come into the marriage with another daughter DG whom the Applicant stated was not fathered by him.

7. The Applicant avers that the biological father of the child DG is one DN who is known to the child herself and has been providing for the upkeep of the child as well as communicating with her regularly.

8. The Applicant therefore seeks to have his name removed from the Birth Certificate of the minor alleging that his name was illegally and deceitfully entered into the record by the child’s mother.

9. In opposing the application the 1st, 2nd and 3rd Respondents aver that the Registrar of Persons relies upon information supplied by the child’s parents in preparing the birth records. That said information is deemed to be correct and valid unless the Registrar is notified of any anomaly.

10. The Respondents aver that in the Childs original birth certificate no entry was made for details of the ‘Father’. That later an application for re-registration was made supported by an Affidavit sworn by the Applicant and the child’s mother. Based on that Affidavit the Registrar amended the Birth Certificate to include the Applicant as the Childs father.

11. The Registrar maintains that he acted within the law and asserts that where a wrongful entry is claimed to have been made then it is up to the person making such a claim to produce evidence of said wrongful entry. The Respondents submit that a DNA test ought to be conducted in order to determine with certainty the identity of the Childs father.

ANALYSIS AND DETERMINATION

12. I have carefully considered the originating summons, the Replying Affidavit as well as the written submissions filed by both parties. The Applicant is seeking to have his name removed from the birth certificate of the minor. The Childs biological mother the 4th Respondent did not oppose the application. Indeed vide a letter dated 28th October 2020 the 4th Respondent through her Advocate indicated that she had no objection to the removal of the Applicants name.

13. The matter at hand relates to the question of paternity of a minor. Article 53 1(a) of the Constitution of Kenya 2010 provides that-

“every child has the right to a name and nationality from birth”

14. Likewise Article 53 (2) of the same Constitution provides that-

“a Childs best interests are of paramount importance in every matter concerning the child.”

15. The Applicant in is summons claims that the 4th Respondent “unilaterally and wrongfully without the consent of the Applicant” entered the Applicants name as the Childs father. From the record it is manifest that this allegation is infact untrue.

16. In the Replying Affidavit dated 10th September 2020, it is demonstrated that in the Childs original birth certificate no name was entered in the space provided for father. That original birth certificate Serial Number xxxxxappears as Annexture MO ‘1’ to the Replying Affidavit.

17. Later on 17th November 2009 an application for re-registration was made by the Childs mother (Annexture MO‘2’). In support of that application for re-registration was annexed a statutory declaration together with an Affidavit signed by both the Applicant and the 4th Respondent confirming that the Applicant was the Childs father. (Annextures ‘MO-3’and ‘MO-4’). On the basis of these Affidavits a new birth certificate was issued including the name of the Applicant as the Childs father.

18. It is therefore a blatant lie and amounts to perjury for the Applicant to allege that his name was included unilaterally wrongfully and without his consent. The evidence clearly shows that the Applicant was involved and gave his consent to the inclusion of his name as the Childs father.

19. It is evident that while the couple were in good terms the Applicant was ready and willing to appear as ‘Father’ in the Childs birth certificate. When the relationship turned sour, he goes back to the Registrar seeking to have his name removed. The Registrar’s office cannot be used and abused in this manner. The records maintained in that office are official records, which are relied upon by the Public. Those records ought not be manipulated based on the whims of individuals depending on the current state of their marital union.

20. As stated earlier this is a matter which concerns a child. The child is entitled to know with certainty who her biological father is.

21. Sections 4(2)and((3) of the Children’s Act provides as follows:-

“(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act 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;

(c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.”

22. I am in agreement with the Respondents that given the history of this matter they need to tread carefully. Who is to say that some years down the line if the couple reconciles the Applicant will not make a trip back to the Registrar’s office seeking to be reinstated in the records as the Childs father.

23. In view of his Affidavit in support of the Application for Re-registration and the averments contained in the mothers statutory Declaration dated 15th December 2009 I find that the Applicant has a duty to prove that he is not the Childs father as he now alleges.

24. The Applicant alleged that one DN was the Childs biological father. There is no proof that the said DN is indeed the Childs biological father as alleged by the Applicant. The Childs mother has not sworn any Affidavit to confirm this allegation. The said DN has not been included as a party in this matter neither has he sworn any Affidavit in support of the application.

25. In order to have his name removed from the Birth Certificate the Applicant has two options. He may submit to the Registrars office a DNA test proving that he is not the Childs biological father. Secondly, the Applicant may apply for re-registration and include Affidavits sworn by the Childs mother and biological father to support the removal of his name from the Childs birth certificate.

26. Based on the foregoing I find no merit in this application. The same is dismissed in its entirety. Costs will be met by the Applicant.

Dated in Nairobithis 11thday of March 2022.

…………………………………..

MAUREEN A. ODERO

JUDGE