[2017] KEHC 4180 (KLR)
The court found that the application for review was without merit because the affidavit in support was improperly sworn by the advocate, who was not the applicant and lacked personal knowledge of the facts. There was no error apparent on the face of the record nor any new evidence discovered to justify review. The...
Source-derived case information.
- Citation
- [2017] KEHC 4180 (KLR)
- Parties
- Applicant: Applicants (names not specified); Respondent: (Respondent not specified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 42 of 2015
- Procedural Posture
- Adoption Cause / Ruling on Application for Review of Judgment
- Outcome
- Application for review dismissed; previous judgment set aside; applicants to move for amendment of pleadings; matter to be heard afresh.
- Judges
- DN Musyoka
- Legal Topics
- Adoption Procedure, Child Abandonment, Pleadings Amendment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicants (names not specified)
Applicant
(Respondent not specified)
Respondent
Procedural Posture
Adoption Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the application for review of the judgment dismissing the adoption cause is merited.
- 2 Whether the affidavit in support of the application was properly sworn by a person competent to do so.
- 3 Whether the error in the pleadings can be cured by review or requires amendment of pleadings.
Ratio Decidendi
The court found that the application for review was without merit because the affidavit in support was improperly sworn by the advocate, who was not the applicant and lacked personal knowledge of the facts. There was no error apparent on the face of the record nor any new evidence discovered to justify review. The error was in the pleadings, which failed to link the abandoned child S (as recorded by the police) to Baby I H, the subject of the adoption. Such an error could only be cured by amendment of pleadings, not by review, and amendments are generally not permitted after judgment. However, given the paramount consideration of the welfare of the child, the court exercised its...
Court Disposition
Application for review dismissed; previous judgment set aside; applicants to move for amendment of pleadings; matter to be heard afresh.
Orders
- The application for review is dismissed.
- The judgment of 25th November 2016 is set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(FAMILY DIVISION)
ADOPTION CAUSE NO. 42 OF 2015
IN THE MATTER OF AN APPLICATION FOR ADOPTION OF BABY I H
RULING
1. On 25th November 2016 I delivered a judgment herein where I dismissed the adoption cause herein on grounds that the applicants sought to adopt a child called I H, yet the police records, of the station where the alleged child was surrendered after abandonment, refer to a child called S and not I, yet the pleadings did not at all make any reference to S.
2. The applicants have now brought an application seeking that I review the said judgement. The application is founded on an affidavit sworn by the advocate for the applicants. The said advocate describes herself variously as the “applicant” and “applicants”. It is a fact that the advocate is not the applicant in this cause. She cannot therefore swear an affidavit purporting to be one. She can only swear an affidavit on behalf of the applicants and with their authority. In any event the facts that she deposes are not within her own personal knowledge.
3. Counsel appearing in these matters ought to take them seriously. The pleadings, as they stand, cannot possibly form basis for grant of the orders sought. The whole matter of the child in question started with his abandonment. Upon being found abandoned, the child was taken to the police, who received him as S. The pleadings herein cannot possibly be silent about S, otherwise an impression would be created that Baby I and S were two totally different persons. Without the police link the issue of the child having been abandoned would be lost, and it would be unclear that the child S who reported to the police as abandoned is the same person as I H the subject of these proceedings.
4. There is no error on the face of the court record, neither has the purported applicant discovered any new evidence. There is no basis whatsoever for review. The error is on the part of the pleadings of the applicants. The error cannot be cured by review, rather the applicants ought to have sought to amend their pleadings. The applicants ought to have amended their pleadings before they approached the court for the hearing of the matter. Ideally amendment of pleadings cannot be sought after judgement.
5. There is no merit at all in the application before me. It ought to be dismissed, and I hereby dismiss the same.
6. I note, however, that the matter touches on the welfare of a child. Purely on that account, I shall set aside the judgement of 25th November 2016. The applicants shall move the court for the amendment of their pleadings to conform with the documents that they propose to place before the court to prove their case. The matter shall thereafter be heard afresh.
DATED, SIGNED and DELIVERED at NAIROBI this 14TH DAY OF JULY, 2017.
W. MUSYOKA
JUDGE