[2021] KEHC 9799 (KLR)
The court found that the orders sought by the applicant were substantive and permanent in nature, which cannot be granted through a notice of motion. The proper procedure would have been to file an originating summons. The application was therefore incompetent and could not be granted, regardless of the lack of...
Source-derived case information.
- Citation
- [2021] KEHC 9799 (KLR)
- Parties
- Applicant: AMM; Respondent: Registrar of Births and Deaths Department of Civil Registration Attorney General Office; Respondent: Regina Kavinud Mbusia
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 30 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Striking Out Name From Birth Certificate, Competency of Application, Exparte Hearing, Permanent Orders on Motion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AMM
Applicant
Registrar of Births and Deaths Department of Civil Registration Attorney General Office
Respondent
Regina Kavinud Mbusia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion
Legal Issues
- 1 Whether the applicant is entitled to orders directing removal of his name from the child's birth certificate.
- 2 Whether substantive and permanent orders can be granted through a notice of motion rather than originating summons.
- 3 Whether the application is competent in law.
Ratio Decidendi
The court found that the orders sought by the applicant were substantive and permanent in nature, which cannot be granted through a notice of motion. The proper procedure would have been to file an originating summons. The application was therefore incompetent and could not be granted, regardless of the lack of opposition from the respondents. The court emphasized that procedural requirements must be adhered to even where an application is unopposed.
Court Disposition
application dismissed
Orders
- The application is dismissed for incompetency.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
AMM v Registrar of Births and Deaths Department of Civil Registration Attorney General Office & another (Miscellaneous Application 30 of 2021) [2021] KEHC 9799 (KLR) (12 November 2021) (Ruling)
Neutral citation: [2021] KEHC 9799 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Application 30 of 2021
JN Onyiego, J
November 12, 2021
Between
AMM
Applicant
and
Registrar of Births and Deaths Department of Civil Registration Attorney General Office
1st Respondent
Regina Kavinud Mbusia
2nd Respondent
Ruling
1. Through a Notice of Motion dated August 25, 2021 and filed in court on August 30, 2021, the applicant herein moved this court pursuant to section 14 of the Births and deaths registration Act Cap 149 , article 53 (2) of the Constitution , section 1 A, 3 and 3A of Civil Procedure Act seeking orders as follows;(1)That this application be certified as urgent and service be dispensed with in the first instance following orders;(2)That this court be pleased to direct the 1st and 2nd respondents to remove and strike out the name of Alberto Mutuweta Mgharo from the birth certificate of Alphan Paul Ishara (the child)(3)That the child be issued with another birth certificate which does not bear the names of AMM(4)That costs of the application be borne by the respondent.
2. The application is premised on the grounds set out on the face of it and an affidavit sworn on the August 25, 2012 by the applicant.
3. It is the applicant’s case that from June 2019 to October, 2020 he and the 4th respondent cohabited as husband and wife. That during that period, a baby by the name of API was born. He averred that although aware of the 4th respondent’s extra marital affairs, he continued taking care of the baby as the father.
4. That upon realizing his wife’s infidelity, they parted ways. He subsequently proceeded to conduct a DNA test at KEMRI which revealed that he was not the biological father to the baby. That he took the DNA test report together with the child’s birth certificate to the registrar of births and deaths to remove his name from the birth records of the said child. That he was advised to seek a court order hence this application. He attached the said DNA report marked annexure ANM-3 and birth certificate as annexure AMN-2.
5. Despite service of the application upon parties, none of the respondents ever filed a response. The 4th respondent did not turn up in court despite service of hearing notice. The application proceeded exparte for hearing with the applicant urging the court to allow the application as unopposed. He basically relied on the content contained in the affidavit in support.
6. I have considered the application herein and the affidavit in support. The application was duly served but there is no response. Hearing notice was also served but the 4th respondent the key prayer did not attend as well.
7. It is trite that the fact that an application is not opposed does not mean that it will be allowed automatically. See Gideon Sitelu Koncellah v Julius Lekakeny Ole Sunkuli and 2 others [2018] eKLR.
8. I have perused the Notice of Motion herein. The orders sought are substantive and permanent in nature. It is trite law that substantive orders cannot issue on an application. The best the applicant would have done was to file an Originating Summons seeking similar orders but in a substantive form.
9. For the above reasons stated, the application herein is incompetent and the same is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF NOVEMBER, 2021J N ONYIEGOJUDGE