[2024] KEHC 7429 (KLR)

SMM (Suing through her mother Dorothy Mwendwa Kiminya) v Registrar of Births and Deaths & 2 others (Miscellaneous Application E128 of 2023) [2024] KEHC 7429 (KLR) (Family) (20 June 2024) (Judgment)

Neutral citation: [2024] KEHC 7429 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application E128 of 2023

HK Chemitei, J

June 20, 2024

Between

SMM (Suing through her mother Dorothy Mwendwa Kiminya)

Applicant

and

Registrar Of Births And Deaths

1st Interested Party

Department Of Civil Registration

2nd Interested Party

Attorney General

3rd Interested Party

Judgment

1. The Originating Summons dated 23rd March 2023 by the Applicant seeks for orders that:-(a)The name SM appearing as the name on the birth certificate of SM be amended /corrected to read SMM.

2. The Applicant prayed for costs to be provided.

3. The application is based on the sworn affidavit of SMM her mother of even date.

4. The substance of the application is that the names of the minor as contained in the certificate of birth are incomplete as the name M was missing and she wishes to add the same.

5. She attached an order from the court namely Children’s Case No 730 of 2017 which allowed her to apply for the passport without the name of the father. She was therefore advised to alter the details in the birth certificate so as to avoid any future inconveniences to the child.

6. The 1st and 2nd Interested parties have opposed the application vide the replying affidavit of LM sworn on 6th July 2023. She deponed that the application was improper for the details the Applicant was seeking to be added in the certificate of birth were contrary to those entered during the birth of the child.

7. She said that the name M was missing in their records and the name that was available was one Mugambi. She therefore argued that the application will run contrary to the law and in particular Cap 149 of the Laws of Kenya.

8. In any case the amendment of the child’s name had lapsed as per Section 14 of Cap 149. In other words, one cannot remove the name of the father and it can only be removed upon production of documentary evidence or DNA analysis for that matter.

9. The parties were directed to file written submissions which only the applicant complied.

10. What is before this court is clearly what is called “the best interest of the child”. It appears to me that the father of the child JMK as rightfully found by the Interested party is nowhere in the proceedings. This necessitated the Applicant to apply for the orders from the court to direct the Immigration Department to process the minor’s passport without the input of the father.

11. From the history of this matter it appears to me that the Applicant alone has taken sole responsibility of the minor.

12. Does it mean therefore that the minor should suffer prejudice because of the discordant relationship between her parents? I don’t think so. Although as rightly submitted by the Interested Party Sections 11 and 12 of Cap 149 provides that the parents of the child must provide details to be entered in the register I find that in such circumstances where it is necessary to secure legal rights of the minor it behoves either of the parties to approach the court or use any other legal avenues to put some rights.

13. It will be remiss for this court to take into consideration the differences of the parents and fail to consider what is best for the minor. In any case it has not been established that JMK is not the biological father to the minor. However as seen from the court records he appears to have abandoned or not interested with her future.

14. It is true that under Section 14 of Cap 149 such corrections ought to be done within two years after birth. The same states as hereunder:-“Change of name of child after registrationWhere the birth of any child has been registered before it has received a name, or where the name by which it was registered is altered, the parent or guardian of such child may within two years of the registration, on payment of the prescribed fee, and on providing such evidence as the registrar may think necessary, register the name that has been given to the child.”

15. Clearly it is not mandatory as the word “may” and not “shall” is used. In other words, nothing stops one from applying after expiry of the two-year period.

16. It is necessary at this juncture to seek solace in Article 53 (1) and (2) of the Constitution which provides that:-“Children(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; and(f)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; and(ii)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.”

17. The same resonates well and is given effect by Section 4(3) of the Children’s.

18. The sum total of the above citation clearly points out to the fact that inserting the name M in the minor’s certificate of birth is to her best interest. It must be noted that the minor must enjoy her inalienable rights provided in our progressive Constitution just like any other child and anything that may impede them will be sanctioned by this court.

19. Finally, this court does not see any prejudice that will be suffered by the parties and more so the Interested parties. Even for argument sake the father was to appear later in the child’s life, he will still be her father, a right which no one can take away. It is permanent. It is history.

20. Consequently, the Originating summons is hereby allowed and the name SM as it appears on the birth certificate of SM be amended to read SMM and the 1st and 2nd interested parties are hereby directed to effect the same.

21. Costs shall be in the cause.

DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 20THJUNE 2024. H K CHEMITEIJUDGE