[2004] KEHC 2327 (KLR)
The court found that the Chief Magistrate lacked jurisdiction to grant adoption orders after the repeal of the Adoption Act by the Children’s Act 2001. Any proceedings or orders made under the repealed Adoption Act after 1st March 2002 are null and void. The High Court is the only court vested with jurisdiction to...
Source-derived case information.
- Citation
- [2004] KEHC 2327 (KLR)
- Parties
- Applicant: DS; Applicant: OS
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 2004 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- adoption orders quashed for want of jurisdiction; orders to be removed from Adopted Child Registrar
- Judges
- K Bauni
- Legal Topics
- Adoption Orders, Jurisdiction of Court, Children Act 2001, Repeal of Adoption Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DS
Applicant
OS
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the Chief Magistrate had jurisdiction to grant adoption orders under the repealed Adoption Act.
- 2 Whether the adoption orders granted under a non-existent law are valid.
Ratio Decidendi
The court found that the Chief Magistrate lacked jurisdiction to grant adoption orders after the repeal of the Adoption Act by the Children’s Act 2001. Any proceedings or orders made under the repealed Adoption Act after 1st March 2002 are null and void. The High Court is the only court vested with jurisdiction to make adoption orders under the current law. Consequently, the adoption orders granted by the Chief Magistrate were illegal, null, and void, and the proceedings were quashed. The court further ordered that the adoption orders be removed from the Adopted Child Registrar forthwith.
Court Disposition
adoption orders quashed for want of jurisdiction; orders to be removed from Adopted Child Registrar
Orders
- The proceedings and adoption orders made by the Chief Magistrate are quashed.
- The adoption orders are to be removed from the Adopted Child Registrar forthwith.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE HIGH COURT OF KENYA AT KISII
MISC.APPLICATION NO.54 OF 2004
IN THE MATTER OF ADOPTION ACT –versus- IN THE MATTER OF M (INFANT)
AND
DS) …………………………………… APPLICANTS
OS )
RULING: On 9th January 2004 an application dated the 5th January 2004 was presented before Chief magistrate Kisii (MR. N. ITHIGA) under the ADOPTION ACT seeking two orders:-
1. That Boniface Omollo be appointed guardian-ad-litem of M (The infant).
2. That the applicants herein be authorized to adopt the infant identified through PARICULARS WITHHELD and be allowed to travel and live with the Applicants DS AND OS in the Republic of Switzerland.
The application was allowed and prayers granted as prayed. The whole procedure was irregular and the orders granted thus null and void. It is only the High Court, which has jurisdiction under s.73 and 154(1) of the Children’s Act 2001, to make adoption orders. Furthermore Adoption Act under which the said application was purportedly made and orders given is no longer in existence having been repealed when the Children’s Act came into effect on 1st March 2002.
Thus the magistrate making the said orders had no jurisdiction and the proceedings were brought under non-existent law. The orders were therefore illegal, null and void. In the circumstances the proceedings and adoption orders made are hereby quashed. The adoption orders be removed from the Adopted Child Registrar, forthwith. It is so ordered.
Dated, signed and delivered on 28th May 2004.
KABURU BAUNI
JUDGE 28/5/2004