PNO & another v Registrar of Birth and Death & 2 others [2023] KEHC 23502 (KLR)

PNO & another v Registrar of Birth and Death & 2 others (Miscellaneous Application 179 of 2023) [2023] KEHC 23502 (KLR) (11 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23502 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Application 179 of 2023

RE Aburili, J

October 11, 2023

Between

PNO

1st Applicant

DHC

2nd Applicant

and

Registrar of Birth and Death

1st Respondent

Department of Civil Registration

2nd Respondent

Attorney General

3rd Respondent

Judgment

1. Vide a Chamber Summons dated 2nd October 2023, the two applicants PNO and DHC seek from this court orders directing the Registrar of Births and Deaths and the Department of Civil Registration to remove, delete and or strike out the name of the 2nd Applicant DHC from the Birth Certificate of the child/minor whose name shall be initialled RHW for legal reasons.

2. The applicants further pray that the said child be issued with another Birth Certificate which does not bear the name of the 2nd Applicant DHC.

3. The grounds upon which the application is predicated are contained on the face of the Chamber Summon which are also supported by the separate affidavits sworn by the two applicants herein.

4. According to the Applicants, the 1st Applicant PNO is the biological mother of the child and that she grew up together with the 2nd Applicant DHC as childhood friends and maintained their friendship.

5. That in 2011, the 1st Applicant became pregnant and out of ignorance, although the 2nd Applicant was not responsible for her pregnancy, out of fear of her parents’ strictness, her and the 2nd Applicant entered into a parental responsibility Agreement and when the child was born on 24th June 2011, the 2nd Applicant agreed to have his name be on the child’s birth certificate yet the child is of mixed race unlike the 1st and 2nd Applicants who are black Africans and that they never got married.

6. That the said child is 12 years old and that it is in the best interest of the said child that the name of the 2nd Applicant be removed from the child’s birth certificate as his father in unknown.

7. The above facts are deposed by both the two applicants herein.

8. When the Respondents were served with the application, they did not file any written response but Mr. Kajo litigation counsel appeared on their behalf and urged the court to call for the appearance of the child and the applicants.

9. The court then directed the applicants’ counsel this morning, to send the court’s virtual links to the applicants to join virtually from whichever location that they were in, which they did.

10. The 1st Applicant appeared with the child, a male child who is of mixed race from Malindi, whereas the 2nd Applicant stated that he was in Ngong town.

11. The court was able to observe that the child is of mixed race and the child informed the court that he was aware of the court process requiring the name of the 2nd Applicant to be expunged from his birth certificate. The 2nd Applicant too confirmed to court that he had sworn the affidavit on 2nd October 2023 agreeing to have his name expunged from the child’s birth certificate which birth certificate was annexed as PNO 2 being entry No. xxxx. He relied on his sworn affidavit on the facts of this case.

12. Article 35 (2) of the Constitution of Kenya provides that every person has the right to the correction or deletion of untrue or misleading information that affects the person.

13. In this case, it is now apparent, having heard and seen the child RHW and the Applicants, and having considered the depositions by the two Applicants, I am satisfied that the information which is contained in the child’s birth certificate is incorrect as far as his father is concerned.

14. This is because, as deposed by the applicants, the child is of mixed race of black and white (Caucasian) while the applicants are pure black Africans.

15. Secondly, the Applicants have deposed, and there is no contrary view, that they ignorantly wrote the name of the father of the child to be that of the 2nd Applicant, knowing very well that that was not true. The child is now 12 years old. The applicants have deposed that they are not married to one another and that the 2nd Applicant has never taken up parental responsibility or even being a guardian to the child RHW.

16. The Applicants also live in different locations and what is now clear is that the child’s birth certificate contains untrue or misleading information as to his paternity, which information affects the child.

17. Article 53 of the Constitution guarantees every child the rights stipulated thereunder, which rights include the right 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. In addition, a child’ best interests are of paramount importance in every matter concerning the child.

18. The entry of the 2nd Applicant into the births register as the child’s father was no doubt misleading and untrue and was irregular as there was no evidence that the Applicants were married to each other under any custom or law.

19. This is contrary to the provisions of Section 12 of the Births and Deaths Registration Act Cap 149 Laws of Kenya.

20. For the above reasons, I find that it is in the best interest of the child RHW that the untrue and misleading information contained in his birth certificate to the effect that the 2nd Applicant is his biological father be deleted and corrected.

21. In the circumstances, I find the application dated 2nd October 2023 to be merited. It is hereby allowed.

22. The Registrar of Births and Deaths and the Department of Civil Registration be and are hereby directed to delete, remove and strike out or correct from the Register and the child’s Birth Certificate Entry No. xxxx the name of the 2nd Applicant as his father.

23. Upon such deletion, removal and striking out, correction or removal of the name of DHC from the said Register and Birth Certificate Entry No. xxxx, the 1st and 2nd Respondents do reissue the child another Birth Certificate which does not bear the name of the 2nd Applicant or any other person as the father of the child RHW.

24. Those shall be the orders of this court.

25. This file is accordingly closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE