Don't name child without man's consent, court tells women

Justice Roselyn Aburili made the directive after revoking a birth certificate dated April 27, 2023, which was obtained by a Kisumu woman for her nine-year-old son after the alleged father disowned paternity and sought his name be removed from the certificate.

While cancelling the disputed birth certificate, the judge warned women against imposing paternal names on their children without the express written permission of their “fathers”.

In her landmark decision, Justice Aburili stated that children have the constitutional right to know who their biological father is.

“Mothers, please, your children have the right to know who their biological fathers are. Do not include the name of a person who is not the biological father of your child in the child’s birth certificate without that person’s express written consent.

“Do not lie as far as the paternity of your child is concerned. We live in a world where one can no longer lie as to the paternity of a child,” the judge stated.

Justice Aburili noted that Section 4 of the Children’s Act, 2022, is very clear that parents must put the best interests of the child first.

"In this sense, any decision made by either parent has to foster the rights and welfare of the child. It is also the right of every child to know his father. In the premises, mothers are advised that unless in extreme circumstances of abuse and neglect, to help their children know their fathers," she said.

According to Aburili, the psychological benefits of having a father present far outweigh the negative effects his absence will have on the child now and in the future.

The decision stemmed from a case lodged in court by a man known as F.O.A. who sought to have his name struck out from the birth certificate belonging to his former lover's nine-year-old son, saying he is not the biological father.

The aggrieved man petitioned the court on November 16 last year, saying he had a romantic relationship with the woman in 2014 and she made him believe he was responsible for her pregnancy.

After some time following the birth of the child, he became suspicious of the paternity and stopped providing financial support. The woman reported him to the children's department in Kisumu where he agreed to resume his obligations.

During that period, he privately took the minor for DNA assessment, where his worst fears were confirmed. He was not the boy’s biological father.

In her affidavit opposing the petition, the woman admitted they were workmates and developed an intimate relationship that bore the boy.

She had claimed that the man acknowledged paternity, gave the boy the name of his deceased brother, and proposed his baptismal name.

The woman admitted they were not married but claimed they had been co-parenting, and the boy knew him as his father. When the boy reached school-going age, she claimed the man provided his national identity card to enable her to process the birth certificate.

The warring parties had appeared before the judge on December 19 last year, when the woman asked for more time to negotiate. However, they hit a deadlock on January 30 this year, and they agreed to have a second DNA test conducted.

"After the second DNA report dated February 14, 2024 was filed in court, the woman and her advocate stopped attending court after it confirmed the man was not the father of his son as earlier alleged," court papers stated.

In her decision, the judge noted that the aggrieved “father” was vindicated by two DNA reports that were conducted independently and at different times and places.

“There is evidence adduced beyond reasonable doubt from the two DNA reports filed in this court that the applicant is not the biological father to the minor and he has no interest in the child having or using his name on the birth certificate,” the Judge said.

Aburili stated Article 35 of the Constitution guarantees every person the right to correction or deletion of “untrue or misleading” information contained in formal documents.

"The child in this case equally has the right to the correction or deletion of untrue or misleading information that affects (him) as stipulated in Article 35(2) of the Constitution.

"I hereby allow the application dated November 16, 2023 to the extent that the name of the applicant herein F.O.A. contained in the child’s birth certificate as the father of the child shall be deleted," the Judge ruled.

She ordered the Registrar of Births and Deaths in Kisumu to issue a fresh one without the names of the man.