[2023] KEHC 18071 (KLR)
The court found that the applicant relied on statutory provisions that were irrelevant to the application for guardianship. Sections 157, 159, and 160 of the Children Act pertain to rehabilitation and not to guardianship. As a result, the originating summons was fatally defective and incompetent. The court therefore...
Source-derived case information.
- Citation
- [2023] KEHC 18071 (KLR)
- Parties
- Applicant: PKS
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E003 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons for Guardianship
- Outcome
- originating summons struck out as incompetent
- Judges
- JK Sergon
- Legal Topics
- Guardianship Application, Children Act Interpretation, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PKS
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons for Guardianship
Legal Issues
- 1 Whether the applicant has relied on the correct statutory provisions for an application for guardianship.
- 2 Whether the originating summons is competent in law.
Ratio Decidendi
The court found that the applicant relied on statutory provisions that were irrelevant to the application for guardianship. Sections 157, 159, and 160 of the Children Act pertain to rehabilitation and not to guardianship. As a result, the originating summons was fatally defective and incompetent. The court therefore struck out the application for failure to comply with the correct legal procedure and statutory requirements for guardianship applications under the Children Act.
Court Disposition
originating summons struck out as incompetent
Orders
- The originating summons is struck out for incompetence.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
In re EC (Child) (Miscellaneous Application E003 of 2023) [2023] KEHC 18071 (KLR) (16 May 2023) (Ruling)
Neutral citation: [2023] KEHC 18071 (KLR)
Republic of Kenya
In the High Court at Kericho
Miscellaneous Application E003 of 2023
JK Sergon, J
May 16, 2023
IN THE MATTER OF THE CHILDREN’S ACT NO.29 OF 2022 AND IN THE MATTER OF APPLICATION FOR GUARDIANSHIP TO EC
In the matter of
PKS
Applicant
Ruling
1. Pursuant to the provisions of section 157, 159 (1) (a) (i), 160 and 164 of the Children Act No 8 of 2001, PKS, the applicant herein took out the originating summons dated March 22, 2023 whereof he sought for the following orders:-i.That the applicant herein PKS be appointed as legal guardian ad litem of EC.ii.That the applicant be allowed and be the authorized guardian in respect of the above-mentioned child.iii.That upon guardianship is being granted, the guardian be known as the parent to the child above-mentioned.iv.That this court do issue further orders as may be deemed fit in interest of the child above-mentioned.
2. The applicant filed an affidavit he swore in support or the summons. When the summons came up for hearing, the applicant solely relied on the grounds stated on the originating summons plus the facts he deponed in the supporting affidavit.
3. I have considered the grounds stated and the facts deponed in the supporting affidavit. A cursory perusal of the summons will show that the sections cited and relied upon by the applicant are inapplicable. Section 157 of the Act is in respect of care on committal to a rehabilitation school while section 159 is in respect of escort of a child to a rehabilitation school. Section 160 is on a change of harbouring or concealing of a child. Its apparent that the applicant relied on irrelevant provisions of the Children Act No 29 of 2022.
4. The originating summons therefore is fatally defective and in the result, the same should be struck out since it is incompetent.
5. The originating summons is found to be incompetent hence the same is ordered struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED THIS 16TH DAY OF MAY, 2023. …………………J.K. SERGONJUDGEIn the presence of:C/Assistant – Rutoh