Legitimacy Act Cap 145 - as Plain Text by MWakili

LAWS OF KENYA LEGITIMACY ACT CHAPTER 145 Revised Edition 2012 [1982] Published by the National Council for Law Reporting with the Authority of the Attorney-General www.kenyalaw.org [Rev.

2012] CAP.

145 Legitimacy CHAPTER 145 LEGITIMACY ACT ARRANGEMENT OF SECTIONS Section 1.

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 of the other.

11.

Saving.

SCHEDULE 3 [Issue 1] [Rev.

2012] CAP.

145 Legitimacy CHAPTER 145 LEGITIMACY 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 title This Act may be cited as the Legitimacy Act.

2.

Interpretation In this Act, except where the context otherwise requires court means the High Court; date of legitimation means the date of the marriage leading to the legitimation, or, where the marriage occurred before the commencement of this Act; disposition means an assurance of any interest in property by any instrument whether inter vivos or by will; entailed interest means an interest in tail or in tail male or in tail female or in tail special; intestate includes a person who leaves a will but dies intestate as to some 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 an illegitimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Kenya, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, whichever last happens.

(2) The legitimation of a person under this Act does not enable him or his spouse, children or remoter issue to take any interest in movable or immovable property save as is hereafter in this Act expressly provided.

(3) The provisions of the Schedule to this Act shall have effect with respect to the 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 became or has become a legitimated person may, whether domiciled in Kenya or elsewhere and whether a Kenya citizen or not, apply by petition to the court praying for a decree declaring that the petitioner is the legitimate child of his 5 [Issue 1] CAP.

145 [Rev.

2012] Legitimacy parents, and the court shall have jurisdiction to hear and determine the application and to make such decree declaratory of the legitimacy or illegitimacy of that person as to the court may seem just; and the decree shall be binding to all intents and purposes on the Government and on all persons whomsoever: Provided that the decree of the court shall not in any case prejudice any person, unless that person has been cited or made a party to the proceedings, or is the heir-at-law or next of kin or other real or personal representative of, or derives title under or through, a person so cited or made a party; nor shall the sentence or decree of the court prejudice any person if it is subsequently proved to have been obtained by fraud or collusion.

(2) A petition under this section shall be accompanied by such affidavit verifying it, and of the absence of collusion as the court may by any general rule direct.

(3) In all proceedings under this section, the court may award and enforce payment of costs to any person cited whether or not that person opposes the declaration applied for, where the court deems it reasonable that these costs should be paid.

(4) A copy of every petition under this section, and of the affidavit accompanying it, shall, one month at least before the presentation or filing of the petition, be delivered to the Attorney-General, who shall be a respondent upon the hearing of the petition and upon every subsequent proceeding relating thereto.

(5) Where any application is made under this section, the court may direct that 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 or otherwise summoned in such manner as the court shall direct, and may be permitted to become parties to the proceedings and to oppose the application.

(6) No proceedings under this section shall affect any final judgment or decree already pronounced or made by any court of competent jurisdiction.

(7) The Rules Committee may make rules of court for carrying the provisions of 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 of legitimation; or (c) by descent under an entailed interest created after the date of legitimation, as if the legitimated person had been born legitimate.

(2) Where the right to any property, movable or immovable, depends on the relative seniority of the children of any person, and those children include one or more legitimated persons, the legitimated person or persons shall rank as if he or they had been born on the day when he or they became legitimated by virtue of [Issue 1] 6 [Rev.

2012] CAP.

145 Legitimacy this Act, and if more than one such legitimated person became legitimated at the same time they shall rank as between themselves in order of seniority.

(3) Where property, movable or immovable, or any interest therein is limited in such a way that, if this Act had not been enacted, it would (subject or not to any preceding limitations or charges) have devolved (as nearly as the law permits) along with a dignity or title of honour, then nothing in this Act shall operate to sever the property or any interest therein from that dignity, but it shall devolve (without prejudice to the preceding limitations or charges) as if this Act had not been enacted; and this subsection applies, whether or not there is any express reference to the dignity or title of honour and notwithstanding that in some events the property, or some interest therein, may become severed therefrom.

(4) This section applies only if and so far as a contrary intention is not expressed in the disposition, and shall have effect subject to the terms of the disposition.

[Act No.

26 of 1931, s.

4.] 6.

Succession on intestacy of legitimated persons and issue Where a legitimated person or a child or remoter issue of a legitimated person dies intestate in respect of all or any of his movable or immovable property, the same persons shall be entitled to take the same interests therein as they would have been entitled to take if the legitimated person had been born legitimate.

7.

Application to illegitimate person dying before marriage of parents Where an illegitimate person dies after the commencement of this Act and before the marriage of his parents leaving any spouse, children or remoter issue living at the date of that marriage, then, if that person would, if living at the time of the marriage of his parents, have become a legitimated persons, the provisions of this Act with respect to the taking of interests in property by, or in succession to, the spouse, children and remoter issue of a legitimated person shall apply as if that person had been a legitimated person and the date of the marriage of his parents had been the date of legitimation.

8.

Personal rights and obligation of legitimated persons A legitimated person shall have the same rights, and shall be under the same obligations in respect of the maintenance and support of himself or of any other person as if he had been born legitimate, and, subject to the provisions of this Act, 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 in the 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 one another, whether before or after the commencement of this Act, and the father of the illegitimate person was or is, at the time of the marriage, domiciled in a country, other than Kenya, by the law of which the illegitimate person became legitimated by virtue of that subsequent marriage, that person, if living, shall in Kenya be recognized as having been so legitimated from the commencement of this Act or from the date of the marriage, whichever last happens, 7 [Issue 1] CAP.

145 [Rev.

2012] Legitimacy notwithstanding that his father was not at the time of the birth of that person domiciled in a country in which legitimation by subsequent marriage was permitted by law.

(2) All the provisions of this Act relating to legitimated persons and to the taking of interests in property by or in succession to a legitimated person and the spouse, children and remoter issue of a legitimated person shall apply in the case of a person recognized as having been legitimated under this section, or who would, had he survived the marriage of his parents, have been so recognized; and accordingly this Act shall have effect as if references therein to a legitimated 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 succeed on intestacy of the other (1) Where, after the commencement of this Act, the mother of an illegitimate child, that child not being a legitimated person, dies intestate as respects all or any of her movable or immovable property, and does not leave any legitimate issue surviving her, the illegitimate child, or if he is dead his issue, shall be entitled to take any interest therein to which he or his issue would have been entitled if he had been born legitimate.

(2) Where, after the commencement of this Act, an illegitimate child, not being a legitimated person, dies intestate in respect of all or any of his movable or immovable property, his mother if surviving shall be entitled to take any interest therein to which she would have been entitled if the child had been born legitimate and she had been the only surviving parent.

(3) This section does not apply to or affect the right of any person to take by purchase 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 of honour, or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title.

(2) Nothing in this Act shall affect the operation or construction of any disposition coming into operation before the commencement of this Act, or affect any rights under the intestacy of a person dying before the commencement of this Act.

SCHEDULE [Section 3(3).] RE-REGISTRATION OF BIRTHS OF LEGITIMATED PERSONS 1.

The Registrar-General may, on production of such evidence as appears to him to be satisfactory, authorise at any time the re-registration of the birth of a legitimated person whose birth is already registered under the Births and Deaths [Issue 1] 8 [Rev.

2012] CAP.

145 Legitimacy Registration Act (Cap.

149), and the re-registration shall be affected in the prescribed manner and at the prescribed place: Provided that the Registrar-General shall not authorise the re-registration of the birth of any such person in any case where information with a view to obtaining 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 the legitimated person has been registered under the Births and Deaths Registration Act; or (ii) the paternity of the legitimated person has been established by an affiliation order or otherwise by a decree of a court of competent jurisdiction; or (iii) a declaration of the legitimacy of the legitimated person has been made under this Act.

2.

The parents of a legitimated person, or, in cases where re-registration can be effected on information furnished by one parent and one of the parents is dead, the surviving parent, shall furnish to the Registrar-General information with a view to obtaining the re-registration of the birth of that person within three months after the date of the marriage.

3.

Where the parents, or either of them, fail to furnish the necessary information within the time limited for the purpose, the Registrar-General may at any time after the expiration of that time require the parents of a person whom he believes to have been legitimated by virtue of this Act, or either of them, to give him such information concerning the matter as he may consider necessary, verified in such manner as he may direct, and for that purpose to attend personally either at his office or at any other place appointed by him within such time, not being less that seven 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 required by this Schedule in respect of any legitimated person shall not affect the legitimation of that person.

5.

No fee for re-registration under this Schedule shall be charged if the necessary information for the purpose is furnished within the time above specified; but in any other case there shall be charged in respect of the re- registration such fees, not exceeding in the aggregate ten shillings, as may be prescribed.

6.

The Minister may make regulations prescribing anything which under this Schedule may be prescribed.

7.

This Schedule shall be construed as one with the Births and Deaths Registration Act (Cap.

149).

9 [Issue 1] [Rev.

2012] CAP.

145 Legitimacy [Subsidiary] CHAPTER 145 LEGITIMACY ACT SUBSIDIARY LEGISLATION List of Subsidiary Legislation Page 1.

Legitimacy Rules, 1930.

13 2.

Legitimacy Regulations, 1961.

15 11 [Issue 1] [Rev.

2012] CAP.

145 Legitimacy [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 the Registrar 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 the matter of the Legitimacy Act and in the matter of an application for a declaration as to the legitimacy of (the person sought to be legitimated); the petitioner shall be the person applying for a declaration of legitimacy or in the case of an infant his or her parent or guardian 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 the practice relating to other petitions filed in the court.

5.

The person applying for a declaration of legitimacy, or in the case of an infant his parent or guardian or guardian ad litem, shall be the petitioner, and the Attorney-General shall be the respondent.

6.

Where an infant is petitioner by a guardian ad litem, the petition shall be served on the parent or parents of the infant if alive and procurable, or on the person or persons having the actual custody of the infant, but the judge may dispense with service on any of those persons 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 the Civil Procedure Rules (Cap.

21, Sub.

Leg) or any rules for the time being in force relating to 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 other documents proper for proving the allegations in the petition, and the affidavit shall contain a deposition as to the absence of collusion.

(3) The original certificates, consents and other documents shall be exhibited at the hearing of the petition.

9.

(1) Evidence shall be by affidavit, unless the judge thinks proper to direct evidence to be given orally.

(2) In a case in which it is necessary to appoint a guardian ad litem, the application for appointment shall be in the form of a summons returnable in chambers, supported by affidavit, to which shall be annexed a copy of the petition.

(3) When the pleadings are in order, the Registrar shall, subject to the provisions of subsection (4) of section 4 of the Act, appoint a day for the hearing of the petition, and shall 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 the parties shall attend separately and apart from the others.

13 [Issue 1] CAP.

145 [Rev.

2012] Legitimacy [Subsidiary] 11.

If it appears that the petitioner or any person on his behalf has made a previous application under the Act and that the application has been refused, the court shall not make a legitimacy order unless satisfied that there has been a subsequent change in the circumstances.

12.

All petitions under the Act shall be heard in chambers, unless the judge otherwise orders.

13.

Every legitimacy order shall be drawn up by the Registrar and served on the Registrar-General within seven days of its date, either by exhibiting to that officer the original order or by leaving with him a certified copy thereof under the seal of the court and the signature of the Registrar, or by forwarding a certified copy by registered post.

14.

The judge may make such orders as to costs as he thinks fit, and may direct that all the costs of a petition under the Act shall be borne and paid by the petitioner, or where the petitioner is an infant by his parent or guardian or such other person as may apply on his behalf for an order under the Act.

15.

The court fees payable on proceedings under the Act shall be as follows On filing a petition for a legitimacy order: Sh.

60.

Other fees shall be the same as those payable under the rules of court for the time being in force relating to civil matters in the High Court.

[Issue 1] 14 [Rev.

2012] CAP.

145 Legitimacy [Subsidiary] LEGITIMACY REGULATIONS, 1961 [L.N.

364/1960, L.N.

585/1961.] REGULATIONS UNDER PARAGRAPH 6 OF THE SCHEDULE 1.

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 re- registration may lawfully be effected on information furnished by one parent, that parent, and, where one of the parents is dead, the surviving parent, and, where both parents are dead, the legitimated person or his guardian; registrar means the registrar appointed under the Births and Deaths Registration 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 shall be signed by the informant and delivered to the Registrar-General.

4.

Every application for re-registration shall be accompanied by certified copies of the entries 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 the marriage of his parents respectively.

5.

The Registrar-General may require the informant to produce such evidence by way of statutory declaration or otherwise as he may think necessary to establish the domicile of the father of the legitimated person at the time of his marriage to the mother of the legitimated person.

6.

If the Registrar-General is satisfied that the person to whom the application for re- registration relates was legitimated under the Act by the marriage of his parents and that the 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 birth of that person; and (b) direct the informant (or where the term includes both parents such one of them as he may specify) to attend personally at the office of the registrar and 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 in the register of births in accordance with the requirements of the Births and Deaths Registration Act (Cap.

149), and shall sign the register, adding after his signature the words By authority of the Registrar-General.

8.

(1) Where the Registrar-General is satisfied that the informant is unable to attend personally at the office of the registrar, he may require the informant to make a statutory declaration in form L.O.2 in the Schedule.

(2) On receipt of the statutory declaration, the Registrar-General may authorize the registrar to re-register the birth without requiring the signature of the register by the informant.

9.

Whenever a birth is re-registered under the Act, the registrar shall endorse the original entry relating to the birth with the words Re-registered under the Legitimacy Act and add the 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 from the original entry relating to a birth which has been re-registered, it shall be in his absolute discretion 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 is chargeable, a fee of Sh.10 shall be paid for re-registration of a birth.

SCHEDULE FORM L.O.1 (Rule 3) APPLICATION FOR RE-REGISTRATION To: The Registrar-General.

We [I], being [one of] the parents of.

.

a person legitimated by the Legitimacy Act, hereby apply that his [her] birth be re-registered.

Copies of the entries in the register of births relating to his [her] birth and of the entry in the register of marriages relating to the marriage of his [her] parents are attached.

Dated this.

day of ., 20.

(Signed).

Informant FORM L.O.2 (Rule 8) STATUTORY DECLARATION I,.

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.

145 Legitimacy [Subsidiary] SCHEDULE, FORM L.O.2continued 5.

I make this declaration conscientiously believing the same to be true [and according to the Oaths 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].