[2019] KEHC 11443 (KLR)
The court found that the applicants had indeed filed the necessary foreign adoption documents for MBS, but the registry misplaced them, leading to the earlier refusal to recognize the adoption. Under section 157 of the Children Act, the requirements for adoption were met, and section 176 allows for recognition of...
Source-derived case information.
- Citation
- [2019] KEHC 11443 (KLR)
- Parties
- Applicant: BJS; Applicant: SDS
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 83 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed; previous order refusing adoption of MBS set aside; adoption of MBS by applicants recognized and entered in Kenyan records.
- Judges
- AO Muchelule
- Legal Topics
- Adoption Orders, Recognition of Foreign Adoption, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
BJS
Applicant
SDS
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the court should review its previous judgment refusing the adoption of MBS by the applicants due to missing foreign adoption documents.
- 2 Whether the adoption of MBS by the applicants, granted by the City Civil Court of Bombay, should be recognized and entered in the Kenyan Adopted Children Register.
Ratio Decidendi
The court found that the applicants had indeed filed the necessary foreign adoption documents for MBS, but the registry misplaced them, leading to the earlier refusal to recognize the adoption. Under section 157 of the Children Act, the requirements for adoption were met, and section 176 allows for recognition of foreign adoption orders. The court held that there was sufficient reason under Order 45 rule 1(1) of the Civil Procedure Rules to review and set aside the previous order refusing the adoption. The adoption of MBS by the applicants, as granted by the City Civil Court of Bombay, is recognized and adopted in Kenya, and the relevant authorities are directed to update the records and...
Court Disposition
Application for review allowed; previous order refusing adoption of MBS set aside; adoption of MBS by applicants recognized and entered in Kenyan records.
Orders
- The judgment dated 20th December 2018 is reviewed and the order refusing the adoption of MBS is set aside.
- The adoption of MBS by BJS and SDS, as granted by the City Civil Court of Bombay, is recognized under section 176 of the Children Act, 2001.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. APPLICATION CAUSE NO. 83 OF 2018
IN THE MATTER OF MBS ALIAS SBS AND SBS
BJS…….…………..……….1ST APPLICANT
SDS………………….…….2ND APPLICANT
RULING
1. The applicants BJS and SDS are a Kenyan couple. In the judgment delivered by Justice M.W. Muigai on 20th December 2018 the court did not allow them to adopt MBS because they had not availed and filed documents showing that they had been allowed to adopt him by the City Civil Court at Bombay. The court allowed them to adopt SBS whose adoption documents by the City Civil Court of Bombay had been filed. In this application for the review of the judgment as it relates to MBS the applicants have sworn, that infact, they had filed the foreign adoption documents in relation to both children, and that it was the court that had misplaced the documents in relation to this child.
2. I consider that under section 157of the Children Act, 2001 any child who is resident in Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya, provided that the child has been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the application. The court found that the applicants and MBS had met the requirements of this section.
3. Under section 176 of the Act it is provided that:-
“(1) Where a person has been adopted (whether before or after the commencement of this Act) in any place and the adoption is one to which this section applies, then, for the purposes of this Act and all other written laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect.”
4. I have looked at the application filed on 3rd July 2018 that led to the judgment that is sought to be reviewed. The application related to the adoption orders of both SBS and MBS by the applicants issued on 19th December 1992 and 15th December 1998, respectively, by the City Civil Court at Bombay. The supporting documents on the file only related to SBS. These were the notarized adoption orders and deed of adoption. The ones of MBS were not on record. The applicants state that they filed adoption orders and deeds of adoption in regard to both children. They produced copies of the set to that effect that their advocate had filed, and they indicate that both sets were filed and received by the registry. I am satisfied that the applicants filed in court the adoption order and deed of adoption in relation to MBS issued by the City Civil Court of Bombay on 15th December 1998. I am also satisfied that it was the registry that misplaced these documents which led to the court not to allow the recognition of the adoption.
5. I find that, under Order 45 rule 1(1) of the Civil Procedure Rules, there is sufficient reason to review the judgment dated 20th December 2018 by this court as it relates to MBS. I review the judgment and set aside the order refusing the adoption of MBS by the applicants. In its place, there shall be an order that the adoption of MBS by the applicants BJS and SDS is allowed. In particular, the adoption of MBS by BJS and SDS granted by the City Civil Court of Bombay is adopted by virtue of section 176 of the Children Act, 2001. The court directs the Registrar General to enter this adoption in the Adopted Children Register. The Registrar of Persons is ordered to issue MBS with a Kenyan identity card, and the Department of Immigration to issue the child with a Kenyan passport.
DATED and DELIVERED at NAIROBI this 27TH day of JUNE 2019
A.O. MUCHELULE
JUDGE