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LEGAL AID: I want my father's name on my records

Wednesday December 11 2019

A man and his father. Father and child relationship can be both physical and legal. STOCK PHOTO

A man and his father. Father and child relationship can be both physical and legal. STOCK PHOTO 

ERIC MUKOYA
By ERIC MUKOYA
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Hello,

My name is Stephen and I am 26 years old.

I want to change my father's name on my birth certificate, as the one there belongs to my step-father.

I want it replaced with my biological father’s name.

Kindly advise.

Dear Stephen,

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Father and child relationship can be both physical and legal. Birth certificates therefore are some of the instruments that define legal relations between parents and children.

Your question speaks to the recognition of your biological father on the birth certificate, which now reads the name of your step-father. Your desire is valid and at 26 years, no one can doubt your intentions.

You are brave to seek this kind of change 26 years later in life. Your position gives legal scholars and practitioners an opportunity to interrogate the law with regard to registration of births and deaths. The Registration of Births and Deaths Act is specific to how to change the name of child, which can happen before age two.

The Registration of Documents Regulations is also clear on how to change name of a child above the age of two through completing and filling of a Deed Poll. Nonetheless, the law is not generous on removal, deletion or alteration of a parent’s name from the birth certificate.

Therefore, the response to your question will be guided by case law (decisions made previously on matters with similar connotations) rather than direct intervention by the law.

Scenario one: the mother seeks to remove step-father’s name from birth certificate of her child.

This matter, brought before High Court Judge in Civil Case No. 3 of 2014, Justice Ougo noted the following:

a) the applicant was the biological mother of the child whose father’s name was to be removed had a right to ask the court for such order.

b) the second applicant, who is not the biological father of the minor did not object to the mother’s prayer to court, and the judge found no justification in law to retain his name for the fact that he remained silent.

c) the applicant admitted before the Honourable judge, that on hindsight, she considered her action to register the child’s step-father’s name as a mistake. In his judgement Justice Ougo okayed the deletion of the step-father’s name from the birth certificate, an order which was directed to the Attorney General to act.

Scenario two: the mother seeks the erasure of a name of a person erroneously entered into the birth certificate of her child.

A matter of this nature: Miscellaneous case No. 33 of 2019 was before Honorable Justice Asenath Ongeri and the Judge observed the following:

a) the person entered onto the birth certificate was the actual father of the applicant (mother of child)

b)the name of the grandfather of the child, who is the father of the applicant was erroneously entered onto the birth certificate as the father of the child.

Based on this an order was given to the Registrar General to strike out the name of the deceased (grandfather) from the Birth certificate of the child. The second term that the child be issued with another birth certificate which does not bear the names of the deceased (Grandfather) as the father of the child: and that the father of the child be indicated as unknown

Your position is unique, because it is you who seeks to expunge your step-father’s name from the birth certificate and substitute with that of your biological father. Since the likely possible intervention could be administrative by a deed poll, an understanding with regard to successful deletion is necessary.

You must appreciate that the law, including the use a deed poll did not anticipate children contesting father’s name on birth certificates.

It is no surprise that many cases are about adults wanting to change names of children. Our advice to you, notwithstanding the factors motivating your action is as follows: Move the High Court citing the grounds;

a) The inadequacy of Registration of Births and Deaths Act to delete a parent’s name from a birth certificate

b) Insufficiency within the Registration of Documents Regulations that provide for a deed poll, that only contemplates parents seeking to undo, change and review children’s names, and,

c) To seek clarity from the court as regards the ceiling time frame upon which a claim of changing either mother’s or father name can be made.

As such your issue can best be canvassed as a Public Interest Litigation (PIL) opportunity to harmonize various identity laws with the Constitution.

This will therefore guide the prayers you may seek: one, review of the Registration of Births and Deaths Act: two review of the Registration of Documents Regulations (RDR) to expand the use of the deed poll: and three ask the court under the law of equity to define the necessary time line while a party raises such a matter.  

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