When a child is born, it is a requirement of the law that the child be registered. If the child was born at a hospital, an orphanage, a quarantine center or army barracks, the responsible people in the particular establishment are obliged to issue a notification of birth. The registrar of births will rely on the notification of birth when issuing the child with a birth certificate.
Where at the time a child is born, its mother and father were not married; the mother cannot include the father’s name in the birth certificate unless there is a joint request the father and the mother to include the father’s name in the birth certificate (Section 12 Births and Deaths Registration Act) . In the alternative, the mother will have to provide proof of marriage, mostly way of an affidavit. (Click on the link: www.wakilionline.co.ke/affidavits to get an affidavit of proof of marriage) It has been argued that this requirement was put in place to protect men from unscrupulous women.
This position was however challenged in the case of L.N.K vs The Attorney General & 3 Others where a single mother who had given birth to a child outside wedlock moved to court to have Section 12 Births and Deaths Registration Act declared unconstitutional. She argued that the section of law discriminated against children born out of wedlock and created an inequality between them and their counterparts born in wedlock.
The court, in agreeing with her position, noted that each child has the right to have the name of his/ her father added to their birth certificate regardless of the marital status of the parents. The court held that section 12 of the Act which disallowed such a right is a violation of the freedom against discrimination.
Sadly, the Act has not been amended to delete section 12 of the Births and Deaths Registration Act. As a father can still only be added to a child’s birth certificate with his consent through a joint application for addition of after proof of marriage. So, is the court’s ruling in vain? No. It is open to a single mother to apply to court, relying on this case, to have the father’s name added to a child’s birth certificate without a joint application or proof of marriage.
Also, in cases where a mother maliciously or purposely acquires a birth certificate that excludes the father’s name, the child’s father can rely on this case to have his name added to the child’s birth certificate.