A Kisumu man successfully petitioned the court to remove his name from a child’s birth certificate after two DNA tests conclusively proved he was not the biological father of the nine-year-old minor.
Justice Roselyn Aburili of the Kisumu High Court issued the directive, instructing the Registrar of Births and Deaths in Kisumu West to issue a new birth certificate for the child, omitting the names of F.O.A., the petitioner.
The court found that the information in the original birth certificate, dated April 27, 2023, which listed F.O.A. as the father of the child (identified as J.M.O.), was false and misleading.
“I hereby grant the application dated 16th November 2023 to the extent that the name of the applicant herein F.O.A. contained in the child’s Birth Certificate Entry No. xxx as the father of the child J.M.O. shall be deleted,” Justice Aburili declared.
F.O.A. admitted that he allowed his name to be used during the birth certificate issuance process under the Births and Deaths Registration Act, which designates the person present at birth as the child’s father by default.
However, he refuted paternity after conducting a private DNA test, prompting the court to order a second test conducted by the government chemist in Kisumu, which confirmed his non-paternity.
The petitioner recounted a romantic relationship with the child’s mother in 2014, during which she became pregnant. Initially believing he was the father, he provided support until doubts arose about his paternity.
Subsequently, the mother reported him to the Children’s Department for neglect, leading to a summons to discuss the child’s welfare. F.O.A. then arranged for a DNA test privately, revealing the biological mismatch and prompting his legal action to rectify the birth certificate.
The child’s mother, identified as R.A.O., opposed the application, asserting that F.O.A. had acknowledged paternity during their relationship and had actively participated in the child’s upbringing. She argued that he willingly provided his details for the birth certificate issuance and had been involved in decisions regarding the child’s upbringing.
Justice Aburili granted both parties time to seek an amicable resolution but had not resolved the matter when they appeared before her on January 30, 2024. She proceeded to order a second government chemist DNA test at F.O.A.’s expense.
The judge underscored the child’s rights, including the right to accurate registration and identity under Article 35 of the Constitution.
Justice Aburili emphasized that the national government must recognize a child’s name and national identity, and ensure that children are informed of their identity. Additionally, the judge affirmed that children have the right to receive, access, and transmit documents of their own identity.
Further asserting, the judge highlighted that Article 35 of the Constitution guarantees every person the right to correct or delete untrue or misleading information affecting them.
She emphasized that the child in this case equally possesses the right to correct or delete untrue or misleading information that impacts them, as outlined in Article 35(2) of the Constitution.
“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 which was only issued on 27th April 2023 despite the child being born on 10th February 2015,” Justice Aburili concluded.
