1. Before the Court is an Originating summons dated 21 st July, 2025, which was brought under a certificate of urgency seeking;
a. Spent
b. That the Court be pleased to order the 1 st and 2 nd Respondents herein to issue the minor SGN with a Kenyan birth certificate upon presentation of the birth certificate issued in the United Kingdom.
c. That the Honourable court be pleased to order that upon issuance of the Kenyan birth certificate, the 1 st interested party herein does issue a Kenyan passport to the minor SGN upon the Applicant herein availing her for biometric capture at the 1 st interested party’s offices.
d. That this Honourable court does issue such further orders as it may deem fit in the interest of the child.
2. The application is based on the grounds set out on the face of the application and it is also supported by the sworn affidavit of the applicant herein Miriam Gitau, of even date.
3. The gist of the matter is that the applicant, a Maternal Grand Aunt to the Minor herein, was by a judgment dated 20 th April, 2023 vide a case number ZE21C00340 , appointed a special guardian of the minor SGN by the family court in East London, United Kingdom. The said foreign judgment was duly adopted and enforced by a judgment dated 30 th January 2024 in Miscellaneous Application no. E233 of 2023 as rendered by Justice E, Ogolla , w hich appointed the applicant as the legal guardian of the minor.
4. Among the orders granted in Miscellaneous Application number E233 of 2023 was the issuance of a Kenyan passport. However, the applicant deposes that upon presentation of the Minor to the 1 st interested party, she was turned away on the basis that the Minor did not have a Kenyan birth certificate. The instant application therefore seeks that the Minor SGN be provided with a Kenyan birth certificate among other prayers in the said application.
5. The 1 st Respondent, Registrar of births and deaths, filed a replying affidavit dated 18 th September 2025. In the affidavit, the Assistant director Ms. Milkah Nyende, highlights the legal provisions of the Births and Death Registration Act, CAP 149 LOK under which the civil registration department is responsible for implementing registrations of births and deaths occurring in Kenya and outside its boundaries in foreign lands. The Assistant director has highlighted both provisions applicable for local births and deaths registration as well as foreign births and deaths registration to be registered in Kenya.
6. On the part of the office of the Attorney General (3 rd Respondent herein), they have filed grounds of opposition dated 29 th September 2025. In opposing the application, Principal State Counsel Gladys Muthura avers that an application to adopt, recognize and seal the guardianship order is a violation of section (3)(3)(e) of the Foreign Judgments (Reciprocal Enforcement) Act that outlines that the Act shall not apply to a judgment or order in proceedings that is in connection to the custody or guardianship of children. Further that the applicant failed to authenticate the documents to prove legitimacy and legality of the guardianship orders.
7. The 3 rd Respondent went on to state that the unauthenticated Foreign-Born Certificate of Birth issued on 21 st October, 2021 indicates Nicole Njeri as the mother of the Minor and fails to indicate the identity of the father of the minor and yet in the alleged unauthenticated order, he is mentioned. That the Guardianship orders allegedly issued by the Family court at East London, United Kingdom were not properly authenticated, signed or notarized contrary to section 5(4)(a) of the Foreign Judgments (Reciprocal Enforcement) Act which requires an application for registration of a judgment be accompanied with a certificate or to the same effect issued from the original court under its seal and signed by a judge or registrar thereof or by an affidavit to the same effect.
8. Further, that the applicant has failed to provide valid documentation to support their application including the Citizenship status of the alleged deceased mother as well as that the Applicant has failed to provide a verified and authenticated death certificate of the mother from the British High Commission for which the court can rely on. And lastly, that the application is bad in law and should be dismissed.
Analysis and Determinations.
9. Having keenly and meticulously read the application, the replying affidavit, the grounds of opposition and the written submissions by the Applicant, as well as the Judgment by this court in Miscellaneous Application no. E233 of 2023 , the following issues commend to me for determination; -
i. Whether the grounds of opposition have merit in light of the Judgment by this court in Miscellaneous Application no. E233 of 2023 .
ii. Whether Section 10(A) of the births and Deaths Registration Act CAP 149 applies to the Minor SGN herein
iii. Whether the Minor qualifies to be declared a citizen of Kenya.
iv. Whether the Kenyan birth Certificate should issue.
The Law
10. Since this is a children’s matter, I am alive to the provisions of Article 53 (2) that stipulate that the best interest of a child is of paramount importance in every matter concerning the child. Further Section 8 of the children’s Act provides as follows
“(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 primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.”
11. So on whether the grounds of opposition have merit in light of the judgment by this court in Miscellaneous Application no. E233 of 2023 and whether Section 10(A) of the births and Deaths Registration Act CAP 149 Apply to the Minor SGN, I will deal with the twin issues simultaneously.
12. Having laid out the law, I shall proceed with the first question. The Office of the Attorney General raised objections to the Applicant’s Application. The primary ground is that “ any application to adopt, recognize and seal a guardianship order is a violation to section 3 (3)(a) of the Foreign judgments (Reciprocal Enforcement) Act.” The said provision provides that the Act shall not apply to a judgment or order in proceedings that is in connection to the custody or guardianship of children. That is indeed correct if the Application before this Court would have been one seeking to recognize or adopt the guardianship order.
13. Unfortunately, the question of recognizing and adopting the guardianship order was already dealt with by Justice E. Ogolla in Miscellaneous Application no. E233 of 2023. I have taken time to read through the judgment and at paragraphs 4, 5 and 6 the Honourable Judge dealt with the provision of section 3 (3)(a) of the Foreign Judgments (Reciprocal Enforcement) Act. The said Judgment, to my knowledge and understanding has not been challenged by way of an appeal nor varied or set aside by any court of competent jurisdiction. I therefore believe that the grounds of opposition is misconceived. To that end I shall refer to the said judgement in the question of Section 3(3)(a) of the foreign judgments (Reciprocal Enforcement) Act and find that the grounds of opposition raised by the office of the Attorney general lacks merit.
14. The 1 st Respondent on the other hand has pointed the court to the provisions of Births and Deaths Registration Act CAP 149 and at paragraph 5, 6, 7,8 and 9 avers that since the Citizenship of the Minor’s mother has not been indicated in the birth certificate or in the death certificate of the mother, hence they cannot ascertain the citizenship of the mother. The 1 st respondent thus concludes that provision of Section 10(A) of the Births and Deaths Registration Act CAP 149 do not apply to the Minor SGN.
15. Again, the Honorable Judge in Miscellaneous Application no. E233 of 2023 at paragraph 7 dealt with the issue of parentage of the minor SGN, the court did find that the minor’s mother was a Kenyan Citizen and as such the point raised by the 1 st Respondent on the Parentage of the minor becomes sub judice. In any case a look at the certified copy of an entry BCH 085782 indicates the place of birth of Nicole Njeri, the mother of the minor herein, as Kenya. A similar situation obtains in the Coroner’s certificate of the fact of death on the next page indicates date and place of birth of Nicole Njeri, the deceased mother of the Minor herein as Kenya. I therefore find that section 10 (A) of Births and Deaths Registration Act CAP 149 do apply to the Minor.
16. On whether the Minor qualifies to be declared a citizen of Kenya. According to the birth certificate BCH 085782 issued in London by the Registrar on 21 st October 2021, it is indicated that the Minor SGN was born in London to Nicole Njeri whose place of birth is indicated as Kenya. The name of the father is not indicated. However, this is not in issue. The 1 st Respondents have brought about the issue of authentication of the documents presented by the Applicant. However, this issue would have best been articulated in Miscellaneous Application no. E233 of 2023 which at the time was dealing with the issue of parentage. It is my considered opinion that if I deal with that question in this application, I will be sitting on review of the Judgment by honourable Justice E. Ogolla’s Judgment while the question of review is not before me.
17. Honorable Judge E. Ogolla at paragraph 7 of the Judgment dealt with the question of parentage of the Minor. The Court found that the Minor was born to a Kenyan Mother. Article 14 (1) of the Constitution of Kenya stipulates that;
“A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.”
18. Taking into consideration of the above-mentioned constitutional provision and the finding by the court that the Minor was born of a Kenyan mother, the argument by the office of the Attorney general concerning the father is neither here nor there. The constitution only requires one parent to be a Kenyan citizen for a person to be declared a citizen by birth. The birth certificate of the Minor indicates she was born in London on 15 th July 2021. This puts the child within the meaning and operation of the constitution as cited before. To that end I do find that the Minor SGN is a citizen of Kenya by birth.
19. On whether the Kenyan birth Certificate should issue, the Court in Miscellaneous Application no. E233 of 2023 conclusively established the minor's guardianship and Kenyan parentage/citizenship-related facts; that judgment remains valid; Article 14(1) makes the minor a Kenyan citizen by birth; the statutory registration regime permits registration of a foreign birth; and the best interests of the child require the documentary recognition of that status. Therefore, the application to be issued with a Kenyan birth certificate is merited and granted as such.
Disposition
20. The upshot is that I allow the originating summons dated 21 st July 2025 in the following terms: -
a. That the Minor SGN is hereby declared a Kenyan citizen by Birth.
b. That the 1 st and 2 nd Respondents do make the appropriate entries to the register and do issue the Minor SGN with a Kenya birth certificate upon presentation of the birth certificate issued in the United Kingdom.
c. That the 1 st Interested party herein do issue a Kenyan Passport to the Minor SGN upon the Applicant availing her for biometric capture at the interested party’s offices.
d. Each party to bear their own costs of these proceedings.
It is so ordered.
Right of appeal 28 days.
Dated, Signed and delivered via Teams platform on this 18th day of September, 2026.
…………………………………….
Hon. R. A. Oganyo, Mrs.
Judge.
In the presence of; -
Court Assistant…. Sana Erastus
Miss Gandi h/b for Miss Masaki for Applicant
2
a. Spent
b. That the Court be pleased to order the 1 st and 2 nd Respondents herein to issue the minor SGN with a Kenyan birth certificate upon presentation of the birth certificate issued in the United Kingdom.
c. That the Honourable court be pleased to order that upon issuance of the Kenyan birth certificate, the 1 st interested party herein does issue a Kenyan passport to the minor SGN upon the Applicant herein availing her for biometric capture at the 1 st interested party’s offices.
d. That this Honourable court does issue such further orders as it may deem fit in the interest of the child.
2. The application is based on the grounds set out on the face of the application and it is also supported by the sworn affidavit of the applicant herein Miriam Gitau, of even date.
3. The gist of the matter is that the applicant, a Maternal Grand Aunt to the Minor herein, was by a judgment dated 20 th April, 2023 vide a case number ZE21C00340 , appointed a special guardian of the minor SGN by the family court in East London, United Kingdom. The said foreign judgment was duly adopted and enforced by a judgment dated 30 th January 2024 in Miscellaneous Application no. E233 of 2023 as rendered by Justice E, Ogolla , w hich appointed the applicant as the legal guardian of the minor.
4. Among the orders granted in Miscellaneous Application number E233 of 2023 was the issuance of a Kenyan passport. However, the applicant deposes that upon presentation of the Minor to the 1 st interested party, she was turned away on the basis that the Minor did not have a Kenyan birth certificate. The instant application therefore seeks that the Minor SGN be provided with a Kenyan birth certificate among other prayers in the said application.
5. The 1 st Respondent, Registrar of births and deaths, filed a replying affidavit dated 18 th September 2025. In the affidavit, the Assistant director Ms. Milkah Nyende, highlights the legal provisions of the Births and Death Registration Act, CAP 149 LOK under which the civil registration department is responsible for implementing registrations of births and deaths occurring in Kenya and outside its boundaries in foreign lands. The Assistant director has highlighted both provisions applicable for local births and deaths registration as well as foreign births and deaths registration to be registered in Kenya.
6. On the part of the office of the Attorney General (3 rd Respondent herein), they have filed grounds of opposition dated 29 th September 2025. In opposing the application, Principal State Counsel Gladys Muthura avers that an application to adopt, recognize and seal the guardianship order is a violation of section (3)(3)(e) of the Foreign Judgments (Reciprocal Enforcement) Act that outlines that the Act shall not apply to a judgment or order in proceedings that is in connection to the custody or guardianship of children. Further that the applicant failed to authenticate the documents to prove legitimacy and legality of the guardianship orders.
7. The 3 rd Respondent went on to state that the unauthenticated Foreign-Born Certificate of Birth issued on 21 st October, 2021 indicates Nicole Njeri as the mother of the Minor and fails to indicate the identity of the father of the minor and yet in the alleged unauthenticated order, he is mentioned. That the Guardianship orders allegedly issued by the Family court at East London, United Kingdom were not properly authenticated, signed or notarized contrary to section 5(4)(a) of the Foreign Judgments (Reciprocal Enforcement) Act which requires an application for registration of a judgment be accompanied with a certificate or to the same effect issued from the original court under its seal and signed by a judge or registrar thereof or by an affidavit to the same effect.
8. Further, that the applicant has failed to provide valid documentation to support their application including the Citizenship status of the alleged deceased mother as well as that the Applicant has failed to provide a verified and authenticated death certificate of the mother from the British High Commission for which the court can rely on. And lastly, that the application is bad in law and should be dismissed.
Analysis and Determinations.
9. Having keenly and meticulously read the application, the replying affidavit, the grounds of opposition and the written submissions by the Applicant, as well as the Judgment by this court in Miscellaneous Application no. E233 of 2023 , the following issues commend to me for determination; -
i. Whether the grounds of opposition have merit in light of the Judgment by this court in Miscellaneous Application no. E233 of 2023 .
ii. Whether Section 10(A) of the births and Deaths Registration Act CAP 149 applies to the Minor SGN herein
iii. Whether the Minor qualifies to be declared a citizen of Kenya.
iv. Whether the Kenyan birth Certificate should issue.
The Law
10. Since this is a children’s matter, I am alive to the provisions of Article 53 (2) that stipulate that the best interest of a child is of paramount importance in every matter concerning the child. Further Section 8 of the children’s Act provides as follows
“(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 primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.”
11. So on whether the grounds of opposition have merit in light of the judgment by this court in Miscellaneous Application no. E233 of 2023 and whether Section 10(A) of the births and Deaths Registration Act CAP 149 Apply to the Minor SGN, I will deal with the twin issues simultaneously.
12. Having laid out the law, I shall proceed with the first question. The Office of the Attorney General raised objections to the Applicant’s Application. The primary ground is that “ any application to adopt, recognize and seal a guardianship order is a violation to section 3 (3)(a) of the Foreign judgments (Reciprocal Enforcement) Act.” The said provision provides that the Act shall not apply to a judgment or order in proceedings that is in connection to the custody or guardianship of children. That is indeed correct if the Application before this Court would have been one seeking to recognize or adopt the guardianship order.
13. Unfortunately, the question of recognizing and adopting the guardianship order was already dealt with by Justice E. Ogolla in Miscellaneous Application no. E233 of 2023. I have taken time to read through the judgment and at paragraphs 4, 5 and 6 the Honourable Judge dealt with the provision of section 3 (3)(a) of the Foreign Judgments (Reciprocal Enforcement) Act. The said Judgment, to my knowledge and understanding has not been challenged by way of an appeal nor varied or set aside by any court of competent jurisdiction. I therefore believe that the grounds of opposition is misconceived. To that end I shall refer to the said judgement in the question of Section 3(3)(a) of the foreign judgments (Reciprocal Enforcement) Act and find that the grounds of opposition raised by the office of the Attorney general lacks merit.
14. The 1 st Respondent on the other hand has pointed the court to the provisions of Births and Deaths Registration Act CAP 149 and at paragraph 5, 6, 7,8 and 9 avers that since the Citizenship of the Minor’s mother has not been indicated in the birth certificate or in the death certificate of the mother, hence they cannot ascertain the citizenship of the mother. The 1 st respondent thus concludes that provision of Section 10(A) of the Births and Deaths Registration Act CAP 149 do not apply to the Minor SGN.
15. Again, the Honorable Judge in Miscellaneous Application no. E233 of 2023 at paragraph 7 dealt with the issue of parentage of the minor SGN, the court did find that the minor’s mother was a Kenyan Citizen and as such the point raised by the 1 st Respondent on the Parentage of the minor becomes sub judice. In any case a look at the certified copy of an entry BCH 085782 indicates the place of birth of Nicole Njeri, the mother of the minor herein, as Kenya. A similar situation obtains in the Coroner’s certificate of the fact of death on the next page indicates date and place of birth of Nicole Njeri, the deceased mother of the Minor herein as Kenya. I therefore find that section 10 (A) of Births and Deaths Registration Act CAP 149 do apply to the Minor.
16. On whether the Minor qualifies to be declared a citizen of Kenya. According to the birth certificate BCH 085782 issued in London by the Registrar on 21 st October 2021, it is indicated that the Minor SGN was born in London to Nicole Njeri whose place of birth is indicated as Kenya. The name of the father is not indicated. However, this is not in issue. The 1 st Respondents have brought about the issue of authentication of the documents presented by the Applicant. However, this issue would have best been articulated in Miscellaneous Application no. E233 of 2023 which at the time was dealing with the issue of parentage. It is my considered opinion that if I deal with that question in this application, I will be sitting on review of the Judgment by honourable Justice E. Ogolla’s Judgment while the question of review is not before me.
17. Honorable Judge E. Ogolla at paragraph 7 of the Judgment dealt with the question of parentage of the Minor. The Court found that the Minor was born to a Kenyan Mother. Article 14 (1) of the Constitution of Kenya stipulates that;
“A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.”
18. Taking into consideration of the above-mentioned constitutional provision and the finding by the court that the Minor was born of a Kenyan mother, the argument by the office of the Attorney general concerning the father is neither here nor there. The constitution only requires one parent to be a Kenyan citizen for a person to be declared a citizen by birth. The birth certificate of the Minor indicates she was born in London on 15 th July 2021. This puts the child within the meaning and operation of the constitution as cited before. To that end I do find that the Minor SGN is a citizen of Kenya by birth.
19. On whether the Kenyan birth Certificate should issue, the Court in Miscellaneous Application no. E233 of 2023 conclusively established the minor's guardianship and Kenyan parentage/citizenship-related facts; that judgment remains valid; Article 14(1) makes the minor a Kenyan citizen by birth; the statutory registration regime permits registration of a foreign birth; and the best interests of the child require the documentary recognition of that status. Therefore, the application to be issued with a Kenyan birth certificate is merited and granted as such.
Disposition
20. The upshot is that I allow the originating summons dated 21 st July 2025 in the following terms: -
a. That the Minor SGN is hereby declared a Kenyan citizen by Birth.
b. That the 1 st and 2 nd Respondents do make the appropriate entries to the register and do issue the Minor SGN with a Kenya birth certificate upon presentation of the birth certificate issued in the United Kingdom.
c. That the 1 st Interested party herein do issue a Kenyan Passport to the Minor SGN upon the Applicant availing her for biometric capture at the interested party’s offices.
d. Each party to bear their own costs of these proceedings.
It is so ordered.
Right of appeal 28 days.
Dated, Signed and delivered via Teams platform on this 18th day of September, 2026.
…………………………………….
Hon. R. A. Oganyo, Mrs.
Judge.
In the presence of; -
Court Assistant…. Sana Erastus
Miss Gandi h/b for Miss Masaki for Applicant
2