R.M v ATTORNEY GENERAL & 4 others [2010] eKLR Lack of Legal Recognition and Discrimination 119. The petitioner has complained that he has been denied legal recognition. In support of this contention the petitioner has identified Sections 2(b) and 7 of the Births and Deaths Registration Act Cap 149 as the offending provision. We must first point out that the reference to Section 2B (or 2(b)) of the Births and Deaths Registration Act is a gaffe because Section 2B does not exist in that Act and Section 2(b) which exist in the Births and Deaths Registration Act, (Cap 149), is not relevant to the petition as it deals with particulars concerning registration of death. We believe that reference to Section 2B or 2(b) was intended as reference to Section 2(a) of the Births and Deaths Registration Act (Cap 149), which defines prescribed particulars concerning registration of birth. 120. As is evident from Section 2(a) of the Births and Deaths Registration Act Cap 149 (reproduced in paragraph 17 above), registration of the particulars of birth is required and such particulars includes the sex of the child. The term sex has not been defined in the Births and Deaths Registration Act, nor has it been defined in the Interpretation and General Provisions Act Cap 2. However, the schedule provided under the Births and Deaths Registration Act for giving the particulars of birth, indicates the sex of the child as either male or female. 121. It is worthy of note that the same term sex has been used in Section 70 of the Constitution. That Section provides general protection of fundamental rights and freedoms of an individual subject to the rights of others and public interest as follows: “70. Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely – (a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the privacy of his home and other property and from deprivation of property without compensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.” 122. Section 82 of the Constitution which specifically provides for the right not to be discriminated against by prohibiting any law from making any provision that is discriminatory, defines discriminatory in Section 82(3) of the Constitution to mean: “affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, color, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or http://www.kenyalaw.org - Page 32/45