[2017] KEHC 2439 (KLR)
The court dismissed the application for review because the applicant's pleadings did not reference L W, the child identified in the supporting documents. The court held that parties are bound by their pleadings, and evidence introduced after judgment cannot cure deficiencies in those pleadings. The applicant's...
Source-derived case information.
- Citation
- [2017] KEHC 2439 (KLR)
- Parties
- Applicant: Applicant (Name not provided)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 4 of 2015
- Procedural Posture
- Adoption Cause / Application for Review of Judgment
- Outcome
- application for review dismissed
- Judges
- DN Musyoka
- Legal Topics
- Adoption Procedure, Pleadings Requirements, Child Identification, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant (Name not provided)
Applicant
Procedural Posture
Adoption Cause / Application for Review of Judgment
Legal Issues
- 1 Whether the applicant sufficiently identified the child sought to be adopted in the pleadings.
- 2 Whether new evidence linking the child named in the pleadings to the abandoned child can be considered without amending the pleadings.
- 3 Whether the court can review its judgment based on documents not referenced in the original pleadings.
Ratio Decidendi
The court dismissed the application for review because the applicant's pleadings did not reference L W, the child identified in the supporting documents. The court held that parties are bound by their pleadings, and evidence introduced after judgment cannot cure deficiencies in those pleadings. The applicant's failure to amend the pleadings to reflect the true identity of the child meant that the new evidence could not be considered. The court emphasized that the foundation of any case is its pleadings, and strong evidence cannot compensate for weak or incorrect pleadings. The application for review was therefore dismissed, but the applicant was directed to amend her pleadings and refile...
Court Disposition
application for review dismissed
Orders
- The application dated 5th July 2017 is dismissed.
- The applicant is directed to move the court appropriately to amend her pleadings to facilitate the grant of the orders sought.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(FAMILY DIVISION)
ADOPTION CAUSE NO. 4 OF 2015
IN THE MATTER OF AN APPLICATION FOR ADOPTION OF BABY K Z
RULING
1. On 25th November 2016 I delivered a judgement wherein I dismissed the suit herein on the grounds that the child sought to be adopted was not sufficiently identified, for the child named in the pleadings was not in any way linked to the child that was reported to the police as found abandoned, and who was subsequently committed by the court to the institution.
2. The applicant has now come back to court by an application dated 5th July 2017, seeking review of the judgement. The applicant has attached a letter from the institution, and an affidavit sworn by the director of the same institution attesting to the alleged fact that the child the subject of these proceedings, K Z, is the same person as L W, the child that was reported abandoned at the police station and the person that the court committed at the institution. I am invited to review my judgement on the basis of these two documents.
3. As I mentioned in the judgement, the child sought to be adopted is named K Z. It is pleaded that she had been abandoned. The documents attached to support the application refer not to K Z, but L W, as the child that was reported to the police as abandoned, and as the child that the court committed to the institution from which she was placed with the applicant. There is no reference whatsoever in the pleadings to L W.
4. A party is bound by its pleadings. The pleadings before me do not refer at all to L W. The documents being introduced now to suggest that L W is one and the same as K Z do not help at all so long as the same is not pleaded in the Originating Summons. The issue is not with the evidence that the applicant placed with the court, but with her pleadings. The documentary evidence she presented to support her case was not in sync with her pleadings, and that remains so to date notwithstanding the material that has now been placed on record.
5. I cannot possibly grant the orders sought so long as the pleadings remain intact. There is no merit in the application dated 5th July 2017 in the circumstances. It is hereby dismissed.
6. I note that this is a case regarding the welfare of a child that has been in the custody of the applicant for some time now. To do justice in the matter I direct that applicant to move the court appropriately to have her pleadings in order to facilitate grant of the orders sought. The matter shall be heard afresh thereafter.
7. It behoves counsel in these matters to be diligent in the way they draft pleadings. The foundation of any case is the pleadings. If the same are weak or wrong in any way, the evidence, no matter how strong or well presented, cannot cure the same. A party should not expect that the evidence presented would in some way cure deficiencies in the manner her case is pleaded. Weak pleadings beget a weak case no matter how strong the evidence may be. Weak pleadings make for a weak foundation which cannot possibly hold up the rest of the case, however that strong that case may be.
DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF NOVEMBER, 2017.
W. MUSYOKA
JUDGE