LEGAL AID: My wife changed our son's name

Dear Sir, 

I enjoy reading the legal advice you give in your articles. I have a son I named in absentia through the phone but it turned out that my wife's family convinced her to change the first name to match that of her father.

Unfortunately, I was still in college and did not follow up on the names in the notification card. By the time I realised this, the birth certificate already bore that name.

I don't like somebody else naming my child for their selfish reasons and so my son has enrolled in school with the name I chose while the official documents read otherwise.

Sorry for the long email. My question now is, is it possible to strike out a name from the birth certificate and replace it with another? If possible, how does one go about it? 

Dear Sir,

I am encouraged when you read the articles which are responses to questions such as yours. You should know that you are also appreciated in equal measure.

The framing of your question suggests an existing marriage despite the issue regarding the preferred name to your son.

You also point out that your son is using your preferred name in school, which is different from the registered one on the birth certificate.

Your situation raises four important issues: They are: The right of the child to have a name; the right of both parents to take parental responsibility towards the child, including naming; the voice of the child in the event their name is being changed, and the processes or procedure to undertake such an assignment.

The Children’s Act, pursuant to the Constitution in Article 53 (1-A), gives any child a right to have a name and nationality at birth. Therefore, your son’s current names are valid in law.

Further, both of you have equal responsibility to parent this boy. As I often say, none of you has superior rights nor inferior duties.

You and your wife have ensured that he is identifiable by name, goes to school and enjoys shelter, clothing and protection from abuse and neglect.

You mention that you realised your son was given a different name from the one you favoured after the birth certificate was issued.

In such cases, the law allows the parent or legal guardian to make an application to the registrar of births and deaths for change of a child’s name within two years as a second registration, from the date of the initial registration given immediately after birth in the prescribed manner and upon payment of prescribed fee.

TWO YEARS HAVE ELAPSED

From the scenario described, you seem to have missed this chance as two years elapsed. But there’s another option. At this stage, one can resort to the Registration of Documents or Change of Names Regulations.

This demands that a parent or guardian makes an application known as “deed poll” for minors.

Deed polls are standard forms officially provided by the government to enable change of name, though their contents vary depending on the person making the application.

Where a minor below the age of sixteen is involved, the form completed for the transaction is Form 4 A. This is your opportunity.

You and your wife will complete the deed poll, and as the law demands, indicate old names that are being replaced and the new ones. After this both of you shall sign off the document as parents and your signatures attested by one witness.

However, if the minor whose name is being changed is aged sixteen and above but below eighteen, their consent must be sought and endorsed on the document before an advocate of the High Court of Kenya.

This, for your information, is a statutory obligation. Once the deed poll has been completed, and all the requirements met, the change will be published in the Kenya Gazette to enable your son commence the use of the new name officially. Subsequently, an application for another birth certificate bearing the new name will be made to the registrar of births and deaths, and for the old name to be vacated.

From your concern I wish to raise a few lessons for any parent out there. Children, depending on their age, have a right to understand the process and even the choice of their name.

Besides, the government has gone digital to register learners through the National Education Management Information System (NEMIS).

This requires that details used and shared in school records correspond to those on the birth certificate. The risk, if differences continue, is the inability of your son to register for his national examinations.

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Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]