[2022] KEHC 15360 (KLR)

In re Baby B aka Baby MIM (Baby) (Adoption Cause 64 of 2018) [2022] KEHC 15360 (KLR) (Civ) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15360 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Adoption Cause 64 of 2018

AO Muchelule, J

November 17, 2022

In the matter of

CWM

Applicant

Ruling

1. Order 45 rule 1 of the Civil Procedure Rules provides as follows; (1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

2. Under the Children Act (cap 141) the Director of Children Services“shall safeguard the welfare of children and shall in particular assist in the establishment, promotion, coordination and supervision of services and facilities designed to advance the well being of children and their families.”He will supervise children officers and regulate their work in the provision of children welfare services among other functions.

3. Vitalis Kipyego, the District Children Officer Eldoret West is the officer who investigated this case in response to the request to have Baby B aka Baby MIM to be adopted by the applicant. Vitalis was undertaking this investigation on behalf of the Director of Children Services. The Director is the secretary of the National Adoption Committee. In his report filed pursuant to the direction by this court made on 26th July 2018, the Director questioned the work done by Vitalis in this case. He pointed out that the child had two different committal orders in two different cases. Each order committed the child to a children home. One to Lewa Children’s Home and, before it was revoked, and the other to St Barnados. Vitalis did not explain this anomaly.

4. Further, the Director was of the view that the applicant was unqualified to adopt the child, and gave reasons.

5. These issues are still outstanding. I expected Vitalis to explain what happened that led to two committal orders in respect of this child. The fact that the applicant was not able to extract an explanation from Vitalis can only be interpreted to mean that all is not well about this application to adopt this child. The fact that the Director of Children Services has not changed his mind since he gave his report does not help the applicant.

6. In other words, no new matter or evidence has been made available. No new facts exist. There has been no mistake or error by the court that has been pointed to by the applicant. Children are vulnerable and have to be protected by the Director of Children Services and the court. No sufficient reason has been given why the orders given on 25th March 2021 should be varied and/or reviewed.

7. The application dated 13th May 2022 is dismissed. For avoidance of doubt, the Director of Children Services should immediately retrieve Baby B aka Baby MIM from the custody of the applicant Catherine Wangari Muiruri.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 17TH DAY OF NOVEMBER 2022A.O. MUCHELULEJUDGE