High Court 1842 of 2026

5. Subsequently the Appellant got married to one KK under customary law. The Appellant’s husband accepted her with the child and took up parental responsibility for the minor. 6. Vide the Amended Plaint dated 30th November 2022 filed in the Lower Court the Respondent, sought the following orders;“ (a) That that plaintiff be given the legal custody of the minor. (b) That the Registrar of Birth and Death be ordered to rectify the Birth Certificate of the minor to read both parents. (c) Any other alternative relief this Honourable Court may deems fit.” 7. The Appellant vehemently opposed the suit in the Lower Court. 8. The suit in the Lower Court was heard by way Vive Voce evidence and vide a judgment delivered on 31st July 2023 Hon E Kanyiri, Principal Magistrate made the following orders;- 9. “ (i) That the Defendant shall have custody, care and control of the minor E.N.J (ii) That the plaintiff shall have unlimited access to the child but at all-time ensure to give sufficient notice to the Defendant which in any case shall be within 24 hours. (iii) That Defendant shall chose an appropriate school for the minor and inform the plaintiff and provide all necessary information to the plaintiff to enable him make necessary arrangement for payment. (iv) That the plaintiff shall provide all school fees and school related expenses for the child E.N.J. (v) That the said sums to be paid directly to the school attended by the child E. N. J (vi) That in case of change of circumstances such as change of school where the parties are unable to agree, either party to be at liberty to move the children’s court for directions. (vii) That the Defendant will continue to provide shelter, food, clothing and all other needs of the child E.N. J. (viii) That the birth certificate of the minor be rectified to reflect the names of both parents. (ix) That the registrar of births and deaths is hereby ordered to rectify the Birth Certificate of the child E.N.J to read both parents. (x) That each party will meet its own costs of this suit.” Being aggrieved by the judgment of the Lower court the Appellant filed this present appeal which is premised upon the following grounds;“ 1. That the learned trial magistrate erred in fact and in law in granting myriad of orders not sought by the respondent in his pleadings in the trial court. The trial magistrate went beyond the parties pleadings which is against the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1842/eng@2026-02-20 2

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2. That the learned trial magistrate erred in fact and in law in granting unlimited access of the minor to the respondent. This decision is not in the best interest of the minor and did not take into account the totality of the evidence adduced in the trial court. 3. That the learned trial magistrate erred in fact and in law in ordering rectification of the minor’s birth certificate to read the names of both parents which decision again is not in the best interest of the minor.” Analysis And Determination 10. I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 11. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:“ This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v. Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” 12. The Appellant does not deny that she was involved in an intimate relationship with the Respondent sometime in the year 2019 and that they cohabited from 2019 until August 2020. The Appellant also does not deny that she fell pregnant during their relationship but states that since the Respondent at the time denied the pregnancy the Appellant returned to her mother’s home in Githunguri where she gave birth to a daughter on 20th September 2020. A copy of the child’s Birth Certificate Serial No. 70xxxx87 appears at Page 22 of the Record of Appeal. 13. The Appellant states that following the birth of the child, the Respondent did visit the child on a few occasions but she maintains that the Respondent made no financial contribution at all to the maintenance and/or upkeep of the child. 14. The Appellant eventually got married to one KK in February 2022. Her husband readily accepted the appellant’s daughter as his own and took up full parental responsibility for the child. That after her marriage the Respondent intensified his efforts to access the minor and became abusive to the appellant and her family members. The respondent accused the appellant of neglecting the minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1842/eng@2026-02-20 3

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15. In the Amended Plaint dated 30th November 2022 the Respondent insisted that he has been providing support to the minor by sending money for her maintenance. He accused the appellant of neglecting the minor by leaving the child with unsuitable people when she goes to work. He alleged that the appellant and her current husband were in the habit of partying at night-clubs and returning in the wee hours of the morning, leaving the minor alone locked inside the house. 16. The Respondents sought to be granted access to the minor and prayed that his name be included in the child’s Birth Certificate as he is the child’s biological father. 17. At the outset this court reminds itself that this is a matter which involves a child. Section 8(1) of the Children Act 2022 provides that “ 8(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies a. The best interests of the child shall be the priority Consideration” [Own emphasis] 18. The parentage of this child is not disputed. What the parents disagree on is the question of custody of the child and whether the child’s father has the right to have his name included in the minor’s birth certificate. 19. Whilst it is appreciated that the child’s mother is now married to another man and the current husband has readily accepted the child and is ready to provide for all the needs of the child, this does not negate the rights of the child’s biological father to have access to his daughter. The rights of the child’s father cannot be extinguished due to the marriage of the mother. 20. Section 24(3) of the Children Act provides that “ (3) Where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other – a. the mother shall have parental responsibility at the first instance. b. the father shall subsequently acquire parental responsibility for the child in accordance with the provisions of Section 25. c. More than one person may have parental responsibility for the same child at the same time. d. ………………………………." 21. The Respondent did indicate his desire, and willingness to be involved in the life of his daughter and sought to be awarded custody of the child. The desire of the Respondent to be involved in the life of his child is commendable given the proliferation of ‘dead beat dads’ in this society. 22. Section 103 of the Children Act sets out the factors which courts ought to consider in making a decision regarding custody of a minor. Whatever decision is made regarding custody as stated earlier the ‘best interest’ of the child must be given priority. A child has the right to interact with both parents. Indeed interaction with both parents contribute greatly to ensuring healthy emotional growth in a child and giving that child a proper sense of identity. 23. The trial court correctly noted that the child had been in the custody of the mother from the time of her birth. Although the Respondent made certain wild allegation claiming that the appellant and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1842/eng@2026-02-20 4

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her family were neglectful, and abusive caregivers as the trial court rightly pointed out no evidence was presented at all in support of these allegations. The same were made only in an attempt to disparage the appellant’s character. 24. I am in agreement with the trial court’s decision to award actual custody of the child to the mother (the Appellant) and to allow the Respondent (the father) access to the minor. 25. Section 105(4) of the Children Act obligates a court to give directions on the terms of access. This the trial court did not do. The court granted the Respondent unlimited access to the child upon giving the mother 24 hours notice. In my view such an order was not appropriate given the obvious bad blood between the parties and given that the child is now part of a new family unit which includes the Appellant and her current spouse. 26. In the circumstances it is my view that the access accorded to the Respondent ought to have been more specific and set out in detail. A such I do vary the order of unlimited access made by the trial court and instead I direct that the Respondent who is the father of the child shall have access to the subject minor on the 1st and 3rd Saturday of each month from 9.00am to 5.00pm. 27. The trial court did go ahead to make orders with respect to the maintenance of the minor i.e payment of School fees, housing etc. In his plaint the Respondent made no prayer for orders on maintenance and neither did the Appellant make any prayer for maintenance. If anything the Appellant has made it clear that her current husband is ready and willing to provide for the needs of the child. 28. It is trite law that parties are bound by their pleadings. It is upon the pleadings filed in court that a Court makes its orders. In Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] eKLR the Court of Appeal held thus:“ As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce. The learned Judge, no matter how well-intentioned, went well beyond the grounds raised by the petitioners and answered by the responds before her and thereby determined the petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the appeal succeeds on that score.” 29. From the material before the trial court, there was certainly no prayer by the Plaintiff for maintenance of payment of school fees and/or related costs. Therefore I find that the trial court erred in making orders of maintenance. Further the court erred in ordering that the defendant would continue providing shelter food clothing and other needs of the child as this not prayed for by either party. To this extent the appeal succeeds. 30. The next question is whether the trial court was right to direct that the Respondent’s name be included in the child’s birth certificate. On this regard the Court would cite Section 12 of the Births and Deaths Registration Act, Cap 149 Laws of Kenya “ No person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production of such evidence as she may require that the father and mother or upon the production of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognized custom.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1842/eng@2026-02-20 5

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31. Section 12 of the Births and Deaths Registration Act was found to unconstitutional by the Court (Hon. Ngugi, J, (as she then was) in L.N.W v Attorney General & 3 others [2016] eKLR, and in a judgment delivered on 26th May 2016, held that:“ The law must demand that fathers of children born outside marriage step up to the plate and take parental responsibility for their children. This must begin with the provisions in respect of registration of the birth of such children…..It must be obvious by now that in my view, this petition is merited, and a challenge to section 12 of the Registration of Births and Deaths Act is long overdue. My findings, and I so hold, is that section 12 of the Registration of Births and Deaths Act, which contains the requirement of the consent of a father of a child born out of wedlock to have his name entered in the births register and the child’s birth certificate, is unconstitutional and in violation of Articles 27, 28 and 53 of the Constitution. Given the submissions of the respondent with respect to what it is intended to achieve, my finding is that the section cannot be justified under Article 24 of the Constitution. [Own emphasis] 32. 33. The Court then proceeded to issue the following orders: a) I declare that section 12 of the Registration of Births and Deaths Act is inconsistent with Articles 27, 53 (1) and (e) and 53(2) of the Constitution and is therefore null and void. b) I direct that section 12 of the Registration of Births and Deaths Act be construed with the necessary alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with Articles 27, 53 (1) (a) and (e) and 53 (2) of the Constitution. c) I declare that all children born out of wedlock shall have the right and or liberty to have the names of their fathers entered in the births registers. d) I direct the Registrar of Births and Deaths to, within 45 days hereof out in place mechanisms to facilitate the entry into the birth register of the names of the fathers of children born outside wedlock in compliance with order (c) above. [Own emphasis] Article 53(1) (a) of the Constitution of Kenya 2010 provides that:“ 53(1) Every child has the right – a. To a name and nationality from birth.” 34. In a patriarchal society like Kenya where a child is identified through lineage of the father, a child’s right to a name will of necessity include the name of the father. 35. Again going back to the ‘best interest’ principle the minor has a Right to an identity which includes the identification of her biological father in her birth document. This is not a decision for the Appellant to make. 36. Finally this appeal is partially successful. I set aside the orders made by the trial court and in its place make the following orders;(1) Actual custody care and control of E.N.J (Minor) is vested in EW. (2) The Respondent SK shall be granted access to the minor as follows;- (1) First and Third Saturday of each month form 9.00am to 5.00pm. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1842/eng@2026-02-20 6

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(3) The Registrar of Births and Deaths is directed to rectify the Birth Certificate of the minor E.N.J to include the name of the Father SK. (4) In event either party wish to review the orders of access, application may be made to the Children’s Court in the first instance. (5) This being a family matter each side will bear their own costs. DATED IN NYERI THIS 20TH DAY OF FEBRUARY 2026 ……………………. MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1842/eng@2026-02-20 7

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