[2008] KEHC 90 (KLR)
The court found that the chamber summons seeking appointment of a guardian ad litem and related orders was premature because the originating summons for adoption had not yet been heard and the requisite reports from the Children’s Department and adoption society had not been filed. The court emphasized that these...
Source-derived case information.
- Citation
- [2008] KEHC 90 (KLR)
- Parties
- Applicant: J.K.S; Applicant: C.D
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 1 of 2008
- Procedural Posture
- Adoption Cause / Ruling on Preliminary Application (chamber Summons)
- Outcome
- application struck out as premature
- Judges
- CA Ombija
- Legal Topics
- Adoption Procedure, Guardian Ad Litem, Children Welfare Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.K.S
Applicant
C.D
Applicant
Procedural Posture
Adoption Cause / Ruling on Preliminary Application (chamber Summons)
Legal Issues
- 1 Whether the chamber summons seeking appointment of a guardian ad litem and related orders was properly before the court.
- 2 Whether the necessary reports and procedural steps had been complied with prior to hearing the adoption application.
Ratio Decidendi
The court found that the chamber summons seeking appointment of a guardian ad litem and related orders was premature because the originating summons for adoption had not yet been heard and the requisite reports from the Children’s Department and adoption society had not been filed. The court emphasized that these procedural steps are mandatory to ensure the best interests of the child and compliance with statutory requirements. As such, the application was struck out, and directions were given for the proper sequence of proceedings to be followed.
Court Disposition
application struck out as premature
Orders
- The chamber summons dated 2nd April 2008 is struck out.
- The ex-parte originating summons dated 12th April 2007 to be fixed for hearing on a date to be fixed in the registry.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI
Adoption Cause 1 of 2008
IN THE MATTER OF: S M (MINOR)
AND
1. J.K.S
2. C.D................................APPLICANTS
R U L I N G
By an application by way of chamber summons, dated 2nd April 2008, under the inherent powers of the court, the applicant seeks orders:-
1. That this matter be certified urgent and service thereof at first instance be dispensed with.
2. That B M M of P O Box [Particulars withheld]Malindi be appointed guardian ad litem in this case.
3. That the director of the Children’s Department do evaluate the applicant’s application and file a report.
4. That the Child Welfare Society of Kenya and the District Children Officer Malindi be directed to prepare a home visit report and declare the minor free for adoption.
5. That this honourable court be pleased to make any further orders as it deems fit and necessary.
6. That cost of this application be provided for.
The application is predicated upon the annexed statement in support of J.K.S and C.D dated 30th day of November 2007.
On behalf of the applicants, K.S and C.D, it was argued that the former is a Kenyan citizen while the latter is an Italian citizen. They are husband and wife having celebrated their marriage at the D.C.s office at Malindi on 6th September 2001.
That the minor, subject matter of the adoption, was born on 2nd July 2001 to S.K, as appears in the birth certificate annexed at page 3.
S.K died on the 10th of April 2002 as per exhibit P1. Accordingly her consent to this adoption should be dispensed with.
That after the death of his (minor’s) mother, the first applicant became the sole guardian. Upon meeting the 2nd applicant, the shared responsibility for the husbandry of the child fell to both applicants.
The minor has been in their joint custody since April 2003. Currently, the second applicant who has no other children has taken over the role of the mother for the minor who knows no other mother and who treats the applicants as his parents.
That in the foregoing circumstances, they wish to legally and properly adopt the minor. That it is advantageous to the minor that he should have a legal nexus to his putative mother so that he can take full advantage of the opportunities available to him as a child of a citizen of the European Union.
Last but not least, that he had no interest adverse to those of the minor. They have an adequate accommodation for the minor and they are both physically and mentally fit to adopt the minor. It is in the best interest of the minor that an adoption order be made.
On perusal of the file, I have since discovered that the ex-parte originating summons dated 2nd April 2007, and supported by the affidavit of J.K.S and C.D sworn on November 2007, has not been heard. If it was heard, the Judge would have ordered the director of Children’s Department to file a report in addition to a report of suitability of the adopting parents. That report should have shown how long the proposed adopting parents had stayed with the child before applying for an adoption. The adopting society should have filed the report before the hearing of the originating summons dated 2nd April 2007.
As matter now stand, it is clear to me that prayers 2,3 and 4 in the ex-parte originating summons dated 2nd April 2004 were not granted.
Consequently, the hearing of the chamber summons dated 2nd April 2007 was premature. The applicant put the cart before the horse, so to speak.
Against that backdrop, I am inclined to strike out the chamber summons dated 2nd April 2008 and order that the ex-parteoriginating summons dated 12th April 2007 be fixed for hearing on a date to be fixed in the registry. Thereafter the applicant may file a fresh chamber summons and fix the same for hearing as by law enjoined.
Dated and delivered this 6TH day of MAY 2008.
N.R.O. OMBIJA
JUDGE
Mr. Machuka for Applicant