NAME: EVANS MUIRURI MWANGI

REGISTRATION NUMBER: 1027447

DEGREE: BACHELOR OF LAWS

COURSE TITLE: PRIVATE INTERNATIONAL LAW

COURSE CODE: CLS 430

COURSE INSTRUCTOR: MR OJUKU MOMANYI

TASK: TAKE AWAY ASSIGNMENT

DATE OF SUBMISSION:25-11-2019

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CONTENT

QUESTION……………………………………………...2

INTRODUCTION……………………………………….3

LEGITIMACY AND ILLEGITIMACY.………………. 4

DOMICILE……………………………………………... 4

DOMICILE….……………………………………….… 5

CONCLUSION………………………………………….6

QUESTION

Define a child and discuss the various ways

through which children get their status.

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INTRODUCTION

Pursuant to article 260 of the new constitution 2010, a child means an individual who has not
attained the age of eighteen years.1 According to The United Nations Convention on the Rights
of the Child is a human rights treaty. The Convention defines a child as any human being under
the age of eighteen, unless the age of majority is attained earlier under national legislation.2
National legislation in this context means the domestic laws of a nation; for example, in some
states in the United States of America they have their majority of age as sixteen years.

In African Traditional Society children were regarded to be of value in the community, as they
ensured the continuity of the family, the heritage and culture of the community. They were seen
as a sign of wealth; hence they caused their parents to be held in high regard. In religious society,
they define children as a token of gift from their (god) to do his will and purpose.

In paragraph one and two I have defined the name child in reference to the legal status,
traditional status and religious status in general view. In considering the definition of a child we
can not forget to mention, type of children we have other than abled children and they include;

 Street children
 Adopted children
 Children with disability

Street child refers to is any girl or boy who has not reached adulthood, for whom the street (in
the broadest sense of the word, including unoccupied dwellings, wasteland, etc.) has become her
or his habitual abode and sources of livelihood, and who is inadequately protected, supervised or
directed by responsible adults3.

Adopted child is a child who is been taken care of by an adult (adoptive parent) other than his or
her actual parents. For adoption to occur, it has to go through court proceedings to determine
whether the adults who wants to adopt a child are qualified and have passed the criteria set for
adoption to occur.

1
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=Const2010
2
https://en.wikipedia.org/wiki/Convention_on_the_Rights_of_the_Child#cite_note-4
3
https://www.unicef.org/evaldatabase/files/ZIM_01-805.pdf

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A child with disability refers to any child born with an impairment that substantially limit his or
her activities. The disability can either be physical or mental. Such children need special care and
attention.

LEGITIMACY AND ILLEGITIMACY

Legitimacy is the key to determine the status of a child. For the child to be decided whether he or
she is legitimate in accordance with the norm and culture of the society, it is drawn back to
parents of the child. The status of deciding whether a child is legitimate(valid) or
illegitimate(invalid) mainly It has to be determined whether there was a marriage which took
place between the father and the mother and this was the most successful way to do. This status
is determined by several factors including race, class, inheritance patterns, lineage systems, the
role of fathers, and the position of women. European and sub-Saharan African cultures use these
factors differently to validate the boundaries separating the legitimate from the illegitimate.
English culture asserted that a man had to be proven to be the legal father of a child in order for
it to be considered legitimate and the most successful way to prove legitimacy was through
marriage.4 As years have gone by, scientist have made things to be easier as in any case relating
to who the father is by just taking deoxyribonucleic acid (DNA)which carries the genetic
information and checking it against the child to be sure of the status of the child. Illegitimate
child is a child born out of wedlock that is, the parents had not yet married according to the
culture and customs of the communities.

DOMICILE

Lord Cranworth in Whicker vs. Hume 1858 said “by domicile we mean home; the permanent
home and if you do not understand your permanent home, I am afraid no illustrations drawn
from foreign writers or foreign languages will very much help you to it.”5 However, domicile
can not be equated as a home, for man could be domicile in a country which is not and has never
been his home have more than three homes in different countries but have one domicile. Lord

4
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1064&context=nebanthro
5
https://library.croneri.co.uk/btr/individuals-residencedomicileandtheremittancebasis

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Westbury, in Bell vs. Kennedy to state that domicile is an idea of law. Domicile exacts a strong
influence on matters such as status, capacity to marry, divorce and nullity of marriage, mutual
rights and duties of husband and wife, parent and child, legitimacy, legitimation and adoption.

There are three kinds of domicile namely;

1.Domicile of Origin which is the domicile assigned to a child when it is born.

2.Domicile of Choice which is the domicile which any independent person can acquire for
himself, by a combination of residence and intention.

3.Domicile of Dependency which means the domicile of dependent persons and is dependent on
and usually changes with the domicile of someone else for example, the parent of an infant or a
guardian of person of unsound mind.

A child will either have a domicile of origin or domicile of dependence. He or she will have a
domicile of choice after they reach the age of majority which is considered as eighteen years in
most countries in the world as they would be seen as adult. In Udny vs. Udny Lord Westbury
said that no man shall be without a domicile. Therefore, a child born acquires the domicile of the
father if it is legitimate and of the mother if he is illegitimate. This has been called the Domicile
of Origin involuntary.

Domicile of dependency is the domicile conferred on legally dependent persons by operation of

law. The domicile of a dependent person is the same as the person upon whom he is dependent
and will change with any change in the latter’s domicile. This is where children fall under this
category. And accordingly, the law directs that he follows their domicile as one of dependency.

First, if the child is illegitimate, he takes the domicile of his mother as was stated in the case of
Udny vs. Udny. Secondly if the child is legitimate and his parents are alive and living together,
the child takes the domicile of his father thirdly, if the father then dies, the child there after
normally takes the domicile of the mother. Fourthly, if the child’s legitimate parents are alive but
living apart, then as long as the child has a home along with the mother, he takes her domicile or
if the child was with the father, he takes the father domicile. Fifthly, if a legitimate child has
during his father lifetime the domicile of the mother, he retains it. When the mother dies and the
father is still alive, the child still retains the mother domicile. It can only change when the child

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has a home with the father after his mother’s death. Sixthly, an adopted child for all purposes is
to be treated as if he were a natural child of his adoptive parents. Finally, after the death of the
parents of a legitimate child or of the mother of the illegitimate child, the domicile of the child is
not change, that is, he still retains their domicile. It will only change when the child reaches the
age of the majority that’s when he can have an independent domicile.

CONCLUSION

A child is an adult in the making, that is, he or she is going through the processes, for example,
going to school, initiation for boys, under going puberty and being an adolescent etc, to become
an adult by reaching the age of majority as provided by the law of the country they are in; since a
child is still a minor and they are regarded as being incapable of forming the necessary intention
to acquire a domicile of choice. Legitimacy is a key point in enabling to make the decision to
decide whether, a child is legitimate or illegitimate and mainly it was through marriage as it
formed the cutting point of making a decision. Nowadays time has provided us with other ways
of determining whether a child is legitimate or illegitimate through a sample of blood taken from
the child and checked against the father’s blood to determine if the child is legitimately his or not
through the process known as deoxyribonucleic acid (DNA). Also, children with disabilities falls
under this category. The law requires them to follow the domicile of the parents as one of
dependency. And the only time they can be able to change their domicile, is when they have
reached the age of majority as provided in the law of the country, they are in whether their
parents are alive or dead. An adopted child is treated as a legitimate child by the parents who
have adopted him or her.

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