Legitimacy Act (Cap 145) - Kenya Law Reports

LAWS OF KENYALEGITIMACY ACTCHAPTER 145Revised Edition 2012 [1982]Published by the National Council for Law Reportingwith the Authority of the Attorney-Generalwww.kenyalaw.org

[Rev. 2012] CAP. 145LegitimacyCHAPTER 145LEGITIMACY ACTARRANGEMENT OF SECTIONSSection1. Short title.2. Interpretation.3. Legitimation by subsequent marriage of parents.4. Declarations of legitimacy.5. Rights of legitimated persons, etc., to take interest in property.6. Succession on intestacy of legitimated persons and issue.7. Application to illegitimate person dying before marriage of parents.8. Personal rights and obligations of legitimated persons.9. Provisions as to persons legitimated by extraneous law.10. Right of illegitimate child and mother of illegitimate child to succeed on intestacy ofthe other.11. Saving.SCHEDULE3 [Issue 1]

[Rev. 2012] CAP. 145LegitimacyCHAPTER 145LEGITIMACY ACT[Date of commencement: 10th June, 1930.]An Act of Parliament relating to children born out of wedlock[Act No. 26 of 1931, L.N. 462/1963, Act No. 9 of 1967.]1. Short titleThis Act may be cited as the Legitimacy Act.2. InterpretationIn this Act, except where the context otherwise requires—“court” means the High Court;“date of legitimation” means the date of the marriage leading to thelegitimation, or, where the marriage occurred before the commencement ofthis Act;“disposition” means an assurance of any interest in property by anyinstrument whether inter vivos or by will;“entailed interest” means an interest in tail or in tail male or in tail femaleor in tail special;“intestate” includes a person who leaves a will but dies intestate as tosome beneficial interest in his movable or immovable estate;“legitimated person” means a person legitimated by this Act.3. Legitimation by subsequent marriage of parents(1) Subject to the provisions of this section, where the parents of anillegitimate person marry or have married one another, whether before or afterthe commencement of this Act, the marriage shall, if the father of the illegitimateperson was or is at the date of the marriage domiciled in Kenya, render thatperson, if living, legitimate from the commencement of this Act, or from the dateof the marriage, whichever last happens.(2) The legitimation of a person under this Act does not enable him or hisspouse, children or remoter issue to take any interest in movable or immovableproperty save as is hereafter in this Act expressly provided.(3) The provisions of the Schedule to this Act shall have effect with respect tothe re-registration of the births of legitimated persons.[Act No. 26 of 1931, s. 2.]4. Declarations of legitimacy(1) A person claiming that he or his parent or any remoter ancestor becameor has become a legitimated person may, whether domiciled in Kenya orelsewhere and whether a Kenya citizen or not, apply by petition to the courtpraying for a decree declaring that the petitioner is the legitimate child of his5 [Issue 1]

CAP. 145 [Rev. 2012]Legitimacyparents, and the court shall have jurisdiction to hear and determine theapplication and to make such decree declaratory of the legitimacy or illegitimacyof that person as to the court may seem just; and the decree shall be binding toall intents and purposes on the Government and on all persons whomsoever:Provided that the decree of the court shall not in any case prejudice anyperson, unless that person has been cited or made a party to the proceedings, oris the heir-at-law or next of kin or other real or personal representative of, orderives title under or through, a person so cited or made a party; nor shall thesentence or decree of the court prejudice any person if it is subsequently provedto have been obtained by fraud or collusion.(2) A petition under this section shall be accompanied by such affidavitverifying it, and of the absence of collusion as the court may by any general ruledirect.(3) In all proceedings under this section, the court may award and enforcepayment of costs to any person cited whether or not that person opposes thedeclaration applied for, where the court deems it reasonable that these costsshould be paid.(4) A copy of every petition under this section, and of the affidavitaccompanying it, shall, one month at least before the presentation or filing of thepetition, be delivered to the Attorney-General, who shall be a respondent uponthe hearing of the petition and upon every subsequent proceeding relatingthereto.(5) Where any application is made under this section, the court may directthat such persons (if any) besides the Attorney-General as it thinks fit shall,subject to the rules made under this section, be cited to see proceedings orotherwise summoned in such manner as the court shall direct, and may bepermitted to become parties to the proceedings and to oppose the application.(6) No proceedings under this section shall affect any final judgment ordecree already pronounced or made by any court of competent jurisdiction.(7) The Rules Committee may make rules of court for carrying the provisionsof this section into effect.[Act No. 26 of 1931, s. 3, Act No. 9 of 1967, Sch.]5. Rights of legitimated persons, etc., to take interest in property(1) Subject to the provisions of this Act, a legitimated person and his spouse,children or more remote issue shall be entitled to take any interest—(a) in the estate of an intestate dying after the date of legitimation; or(b) under any disposition coming into operation after the date oflegitimation; or(c) by descent under an entailed interest created after the date oflegitimation,as if the legitimated person had been born legitimate.(2) Where the right to any property, movable or immovable, depends on therelative seniority of the children of any person, and those children include one ormore legitimated persons, the legitimated person or persons shall rank as if he orthey had been born on the day when he or they became legitimated by virtue of[Issue 1] 6

[Rev. 2012] CAP. 145Legitimacythis Act, and if more than one such legitimated person became legitimated at thesame time they shall rank as between themselves in order of seniority.(3) Where property, movable or immovable, or any interest therein is limitedin such a way that, if this Act had not been enacted, it would (subject or not toany preceding limitations or charges) have devolved (as nearly as the lawpermits) along with a dignity or title of honour, then nothing in this Act shalloperate to sever the property or any interest therein from that dignity, but it shalldevolve (without prejudice to the preceding limitations or charges) as if this Acthad not been enacted; and this subsection applies, whether or not there is anyexpress reference to the dignity or title of honour and notwithstanding that insome events the property, or some interest therein, may become severedtherefrom.(4) This section applies only if and so far as a contrary intention is notexpressed in the disposition, and shall have effect subject to the terms of thedisposition.[Act No. 26 of 1931, s. 4.]6. Succession on intestacy of legitimated persons and issueWhere a legitimated person or a child or remoter issue of a legitimated persondies intestate in respect of all or any of his movable or immovable property, thesame persons shall be entitled to take the same interests therein as they wouldhave been entitled to take if the legitimated person had been born legitimate.7. Application to illegitimate person dying before marriage of parentsWhere an illegitimate person dies after the commencement of this Act andbefore the marriage of his parents leaving any spouse, children or remoter issueliving at the date of that marriage, then, if that person would, if living at the time ofthe marriage of his parents, have become a legitimated persons, the provisionsof this Act with respect to the taking of interests in property by, or in successionto, the spouse, children and remoter issue of a legitimated person shall apply asif that person had been a legitimated person and the date of the marriage of hisparents had been the date of legitimation.8. Personal rights and obligation of legitimated personsA legitimated person shall have the same rights, and shall be under the sameobligations in respect of the maintenance and support of himself or of any otherperson as if he had been born legitimate, and, subject to the provisions of thisAct, the provisions of any Act relating to claims for damages, compensation,allowance, benefit or otherwise by or in respect of a legitimate child shall apply inthe case of a legitimated person.9. Provisions as to persons legitimated by extraneous law(1) Where the parents of an illegitimate person marry or have married oneanother, whether before or after the commencement of this Act, and the fatherof the illegitimate person was or is, at the time of the marriage, domiciled in acountry, other than Kenya, by the law of which the illegitimate person becamelegitimated by virtue of that subsequent marriage, that person, if living, shallin Kenya be recognized as having been so legitimated from the commencementof this Act or from the date of the marriage, whichever last happens,7 [Issue 1]

CAP. 145 [Rev. 2012]Legitimacynotwithstanding that his father was not at the time of the birth of that persondomiciled in a country in which legitimation by subsequent marriage waspermitted by law.(2) All the provisions of this Act relating to legitimated persons and to thetaking of interests in property by or in succession to a legitimated person and thespouse, children and remoter issue of a legitimated person shall apply in thecase of a person recognized as having been legitimated under this section, orwho would, had he survived the marriage of his parents, have been sorecognized; and accordingly this Act shall have effect as if references therein to alegitimated person included a person so recognized as having been legitimated.[Act No. 9 of 1967, Sch.]10. Right of illegitimate child and mother of illegitimate child to succeedon intestacy of the other(1) Where, after the commencement of this Act, the mother of an illegitimatechild, that child not being a legitimated person, dies intestate as respects all orany of her movable or immovable property, and does not leave any legitimateissue surviving her, the illegitimate child, or if he is dead his issue, shall beentitled to take any interest therein to which he or his issue would have beenentitled if he had been born legitimate.(2) Where, after the commencement of this Act, an illegitimate child, notbeing a legitimated person, dies intestate in respect of all or any of his movableor immovable property, his mother if surviving shall be entitled to take anyinterest therein to which she would have been entitled if the child had been bornlegitimate and she had been the only surviving parent.(3) This section does not apply to or affect the right of any person to take bypurchase or descent any entailed interest in movable or immovable property.11. Saving(1) Nothing in this Act shall affect the succession to any dignity or title ofhonour, or render any person capable of succeeding to or transmitting a right tosucceed to any such dignity or title.(2) Nothing in this Act shall affect the operation or construction of anydisposition coming into operation before the commencement of this Act, or affectany rights under the intestacy of a person dying before the commencement ofthis Act.SCHEDULE[Section 3(3).]RE-REGISTRATION OF BIRTHS OF LEGITIMATED PERSONS1. The Registrar-General may, on production of such evidence as appears tohim to be satisfactory, authorise at any time the re-registration of the birth of alegitimated person whose birth is already registered under the Births and Deaths[Issue 1] 8

[Rev. 2012] CAP. 145LegitimacyRegistration Act (Cap. 149), and the re-registration shall be affected in theprescribed manner and at the prescribed place:Provided that the Registrar-General shall not authorise the re-registration ofthe birth of any such person in any case where information with a view toobtaining such re-registration is not furnished to him by both parents, unless—(i) the name of a person acknowledging himself to be the father of thelegitimated person has been registered under the Births and DeathsRegistration Act; or(ii) the paternity of the legitimated person has been established by anaffiliation order or otherwise by a decree of a court of competentjurisdiction; or(iii) a declaration of the legitimacy of the legitimated person has beenmade under this Act.2. The parents of a legitimated person, or, in cases where re-registration can beeffected on information furnished by one parent and one of the parents is dead,the surviving parent, shall furnish to the Registrar-General information with aview to obtaining the re-registration of the birth of that person within three monthsafter the date of the marriage.3. Where the parents, or either of them, fail to furnish the necessary informationwithin the time limited for the purpose, the Registrar-General may at any timeafter the expiration of that time require the parents of a person whom he believesto have been legitimated by virtue of this Act, or either of them, to give him suchinformation concerning the matter as he may consider necessary, verified in suchmanner as he may direct, and for that purpose to attend personally either at hisoffice or at any other place appointed by him within such time, not being less thatseven days after the receipt of the notice, as may be specified in the notice.4. The failure of the parents or either of them to furnish information as requiredby this Schedule in respect of any legitimated person shall not affect thelegitimation of that person.5. No fee for re-registration under this Schedule shall be charged if thenecessary information for the purpose is furnished within the time abovespecified; but in any other case there shall be charged in respect of the reregistrationsuch fees, not exceeding in the aggregate ten shillings, as may beprescribed.6. The Minister may make regulations prescribing anything which under thisSchedule may be prescribed.7. This Schedule shall be construed as one with the Births and DeathsRegistration Act (Cap. 149).9 [Issue 1]

[Rev. 2012] CAP. 145Legitimacy[Subsidiary]CHAPTER 145LEGITIMACY ACTSUBSIDIARY LEGISLATIONList of Subsidiary LegislationPage1. Legitimacy Rules, 1930 .............................................................................. 132. Legitimacy Regulations, 1961 .................................................................... 1511 [Issue 1]

[Rev. 2012] CAP. 145Legitimacy[Subsidiary]LEGITIMACY RULES, 1930[G.N. 607/1933.]RULES UNDER SECTION 4(7)1. These Rules may be cited as the Legitimacy Rules, 1930.2. In these Rules, except where a contrary intention appears, “the Registrar” means theRegistrar of the High Court or a district or deputy registrar.3. An application for legitimation shall be made by petition to the court entitled “In thematter of the Legitimacy Act and in the matter of an application for a declaration as to thelegitimacy of (the person sought to be legitimated)”; the petitioner shall be the personapplying for a declaration of legitimacy or in the case of an infant his or her parent orguardian or other person appointed by the court as guardian ad litem.4. The petition shall be filed in the court in accordance so far as practicable with thepractice relating to other petitions filed in the court.5. The person applying for a declaration of legitimacy, or in the case of an infant hisparent or guardian or guardian ad litem, shall be the petitioner, and the Attorney-Generalshall be the respondent.6. Where an infant is petitioner by a guardian ad litem, the petition shall be served on theparent or parents of the infant if alive and procurable, or on the person or persons havingthe actual custody of the infant, but the judge may dispense with service on any of thosepersons and may order the petition to be served on any other person or persons.7. Every petition, notice or document shall be served in the manner prescribed by theCivil Procedure Rules (Cap. 21, Sub. Leg) or any rules for the time being in force relatingto civil procedure.8. (1) The petition shall be verified by affidavit paragraph by paragraph.(2) There shall be annexed to the affidavit copies of all certificates, consents and otherdocuments proper for proving the allegations in the petition, and the affidavit shall containa deposition as to the absence of collusion.(3) The original certificates, consents and other documents shall be exhibited at thehearing of the petition.9. (1) Evidence shall be by affidavit, unless the judge thinks proper to direct evidence tobe given orally.(2) In a case in which it is necessary to appoint a guardian ad litem, the application forappointment shall be in the form of a summons returnable in chambers, supported byaffidavit, to which shall be annexed a copy of the petition.(3) When the pleadings are in order, the Registrar shall, subject to the provisions ofsubsection (4) of section 4 of the Act, appoint a day for the hearing of the petition, andshall give notice to all parties of the day so appointed.10. The judge may refuse to make a legitimacy order unless all parties attend before him,but he may dispense with the attendance of any party, and may direct that any of theparties shall attend separately and apart from the others.13 [Issue 1]

[Rev. 2012] CAP. 145Legitimacy[Subsidiary]LEGITIMACY REGULATIONS, 1961[L.N. 364/1960, L.N. 585/1961.]REGULATIONS UNDER PARAGRAPH 6 OF THE SCHEDULE1. These Regulations may be cited as the Legitimacy Regulations.2. In these Regulations—“informant” means the parents of a legitimated person or, in cases where reregistrationmay lawfully be effected on information furnished by one parent, thatparent, and, where one of the parents is dead, the surviving parent, and, where bothparents are dead, the legitimated person or his guardian;“registrar” means the registrar appointed under the Births and DeathsRegistration Act (Cap. 149) for the area in which the legitimated person was born;“Registrar-General” includes a deputy or assistant registrar-general.3. Every application for re-registration shall be in form L.O.1 in the Schedule, and shallbe signed by the informant and delivered to the Registrar-General.4. Every application for re-registration shall be accompanied by certified copies of theentries in the registers maintained under the Births and Deaths Registration Act (Cap.149) and the Marriage Act (Cap. 150) relating to the birth of the legitimated person and themarriage of his parents respectively.5. The Registrar-General may require the informant to produce such evidence by way ofstatutory declaration or otherwise as he may think necessary to establish the domicile ofthe father of the legitimated person at the time of his marriage to the mother of thelegitimated person.6. If the Registrar-General is satisfied that the person to whom the application for reregistrationrelates was legitimated under the Act by the marriage of his parents and thatthe birth may be re-registered under the Act, he shall—(a) send to the registrar an authority in writing for the re-registration of the birthof that person; and(b) direct the informant (or where the term includes both parents such one ofthem as he may specify) to attend personally at the office of the registrarand to sign the register in the presence of the registrar.7. The registrar shall cause entries of the birth of the legitimated person to be made inthe register of births in accordance with the requirements of the Births and DeathsRegistration Act (Cap. 149), and shall sign the register, adding after his signature thewords “By authority of the Registrar-General”.8. (1) Where the Registrar-General is satisfied that the informant is unable to attendpersonally at the office of the registrar, he may require the informant to make a statutorydeclaration in form L.O.2 in the Schedule.(2) On receipt of the statutory declaration, the Registrar-General may authorize theregistrar to re-register the birth without requiring the signature of the register by theinformant.9. Whenever a birth is re-registered under the Act, the registrar shall endorse the originalentry relating to the birth with the words “Re-registered under the Legitimacy Act” and addthe date of re-registration.15 [Issue 1]

CAP. 145 [Rev. 2012]Legitimacy[Subsidiary]10. If application is made to the Registrar-General for a certified copy of or extract fromthe original entry relating to a birth which has been re-registered, it shall be in his absolutediscretion whether or not to supply such copy or extract.11. Except where, by virtue of paragraph 5 of the Schedule to the Act, no fee ischargeable, a fee of Sh.10 shall be paid for re-registration of a birth.SCHEDULEFORM L.O.1 (Rule 3)APPLICATION FOR RE-REGISTRATIONTo: The Registrar-General.We [I], being [one of] the parents of ................................................................................................................................................................................................................................... a person legitimatedby the Legitimacy Act, hereby apply that his [her] birth be re-registered. Copies of the entries in theregister of births relating to his [her] birth and of the entry in the register of marriages relating to themarriage of his [her] parents are attached.Dated this......................................................... day of .................................................., 20 .............(Signed) ..............................................................InformantFORM L.O.2 (Rule 8)STATUTORY DECLARATIONI, ........................................................................................................................................................of .........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................do solemnly and sincerely declare as follows—1. That I am the father [mother] of ..................................................................................................................................................................................... and that .........................................................is his [her] mother [father].2. That the said ..........................................................................................................................................................................................................................................................................................was born on the ........................................................ day of ........................................................,20 ................... , at..........................................................................................................................3. That on the ................................................... day of .................................................., 20 .............I was lawfully married to the said ...................................................................................................4. That, at the date of my marriage to the said .............................................................................................................................................................., I, the said ......................................................................................................................................................................... was domiciled in Kenya.[Issue 1] 16

[Rev. 2012] CAP. 145LegitimacySCHEDULE, FORM L.O.2—continued[Subsidiary]5. I make this declaration conscientiously believing the same to be true [and according to theOaths and Statutory Declaration Act (Cap. 15)]. ∗Declared at ....................................................this ............ day of .................... , 20 ........................................................................................Before me............................................................∗These words to be omitted if the declaration is made outside Kenya.17 [Issue 1]