LEGAL AID: My first born does not have my surname

Dear Sir,

My first-born son does not have my surname but my second born does. How can I add my surname to his birth certificate?

Thanks in advance.

Hi Reader,

Thank you. Your question is extremely vital. It offers an opportunity for our readers to understand naming as a process and terminus in a person’s life. Naming as a process is both social and legal, and sometimes an event commemorating a new born. In each scenario, it is an emphatic identity process that begins at birth.

Socially, it is such a rite celebrated in diverse cultures among the many African communities. It’s a function that establishes and promulgates a child’s clan, time of birth, religion or faith, geography, community and ethnicity amongst others, especially in Kenya. Being an identity process, naming is one of the most important rights a child can be given. Section 11 of the Children’s Act provides thus;

“Every child shall have a right to a name and nationality and where a child is deprived of his identity the Government shall provide appropriate assistance and protection, with a view to establishing his identity.”

If we contextualise the legal importance of naming, one gets to understand why change of anyone’s name, adult or child opens up them to lot many services and products provided by the state. Passports, Identity cards and various certificates including those accrued or provided upon death, performance of certain examinations, attending school, and even acquiring some professions among other recognition papers commence with a simple birth certificate bearing a person’s name given at birth.

Therefore, for you to add a name to your child’s birth certificate, a number of things require consideration as provided for in the Births and Deaths Registration Act. First, it is important to consider the age of the child, and our obvious assumption that child herein referred is below 18 years. Following, you are free to change their name without any administrative conditions, if they are below two years. You will only need to be armed with new name, a birth notification, birth certificate if any, coupled with reasons necessitating the change or addition and pay the required fee to the Registrar of Births. 

For a child above two years, which is your most likely scenario, one requires to add or change name through a deed poll, that is dual in process but separate by application.

A deed poll as mentioned on this column before is the standard application format provided under the registration of documents for change of name. In particular to your situation, a “Form 4 A” is to be filled and signed by you as the parent on behalf of your son.

Similarly, this form must be witnessed by another person other than you, because you are an executor, preferably an advocate of the high court of Kenya.

The second aspect is informed by the age of the child. If your son is above 16, then his consent is to be provided in the prescribed “Form Four” and the same witnessed as herein described.

In both cases, the application must be supported with the original birth certificate of the child and a statutory declaration or affidavit sworn by a person resident in Kenya and who knows the child well.

LEGAL ASSUMPTION

Since you haven’t disclosed the age of your first-born son, our assumption is that he falls within the two afore-described scenarios.

Secondly, you have not stated the motivation for this addition, but remember it is a requirement when submitting your application. Upon authentication of the various documents supporting the application, the deed poll will be registered with the Registrar of Documents, and thereafter gazetted in the Kenya Gazette for a period not exceeding thirty days.

This period, to make a legal assumption gives the general public time to challenge the new name or raise any concerns.

This could be because naming is synonymous to the identity fabric of certain communities. Once the thirty-day period is over, then your son will be free to take up the name going forward including processes to replace the old and new name from the many of his documents.

While this process seems long, it is important as the identity and official recognition of your son is a gateway to most if not all government services including documents of travel to enable international visits. Should you experience any difficulty while engaging this process, please consult an advocate or a paralegal in your area who will offer guidance.

At the beginning, I said naming is a process and the same has been demonstrated. Similarly, I referred to it as an end, which is the identity that a person owns till they die.

Wishing you well in this endeavour. 

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Eric Mukoya currently works for the non-profit human rights organisation Legal Resources Foundation Trust as the Executive Director. He has a passion for improving the legal literacy of the wider society and access to justice through various public education platforms.

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