[2005] KEHC 1089 (KLR)
The court found that the order issued on 26th May 2004 granting custody instead of adoption was an error apparent on the face of the record. The Originating Summons specifically sought an adoption order, and the District Children’s Officer’s report recommended adoption. The court held that justice required the...
Source-derived case information.
- Citation
- [2005] KEHC 1089 (KLR)
- Parties
- Applicant: E.K.
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 1B of 2003
- Procedural Posture
- Adoption Cause / Application for Review of Previous Custody Order and Grant of Adoption Order
- Outcome
- Application for review allowed; previous custody order set aside and substituted with an adoption order.
- Legal Topics
- Adoption Orders, Review of Court Orders, Custody Vs Adoption, Children Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E.K.
Applicant
Procedural Posture
Adoption Cause / Application for Review of Previous Custody Order and Grant of Adoption Order
Legal Issues
- 1 Whether there was an error apparent on the face of the record in granting custody instead of adoption.
- 2 Whether the applicant is entitled to a review of the previous order to grant adoption as originally sought.
Ratio Decidendi
The court found that the order issued on 26th May 2004 granting custody instead of adoption was an error apparent on the face of the record. The Originating Summons specifically sought an adoption order, and the District Children’s Officer’s report recommended adoption. The court held that justice required the correction of this error and, accordingly, reviewed its previous order, substituting the custody order with an adoption order in favour of the applicant.
Court Disposition
Application for review allowed; previous custody order set aside and substituted with an adoption order.
Orders
- The order of custody of 26th May 2004 is reviewed and set aside.
- An order of adoption of the infant K.A. (N.K.T.) by the applicant E.K. is granted as prayed in the Originating Summons.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
Adoption Cause 1B of 2003
IN THE MATTER OF THE N.K.T.
E.K. ……………………………………… APPLICANT
RULING
Before me is an ex- parte Chamber Summons dated 1st December 2005 filed by Billy Amendi & Co. on behalf of the applicant E.K. The application was brought under certificate of urgency. It was purported to be brought under O.XLIV Rule 1 Civil Procedure Rules. The application seeks for two substantive orders that :-
1. This honourable court be pleased to review the orders of 26th May 2004 granting the custody of the infant K.A. ( N.K.T.) to the applicant herein.
2. Consequently, the applicant be grated an adoption order as sought in the Originating Summons dated 3rd March 2003.
The application has grounds on its face and is supported by the affidavit sworn on 1st December 2005 by Kiplagat J.Misoi advocate. The grounds of the application are firstly, that there is an error apparent on the face of the record , secondly, that the orders sought were those of adoption, and thirdly, that there have been no unreasonable delay in making the application.
At the hearing of the application Mr. Misoi for the applicant submitted that there was a mistake on the face of the ruling of the court dated 26th May 2004. The prayers sought in the Originating Summons were for adoption, not for custody. The court made an error in granting custody in the ruling as those were not the prayers sought. He therefore urged the court to review its ruling and grant the order of adoption as prayed in the Notice of Motion.
I have considered the application and submissions of Mr. Misoi. I have also perused the Originating Summons and my ruling of 26th May 2004. It is evident that prayer (2) of the Originating Summons dated 3rd March 2003 specifically asked for an order of adoption of the infant by E K - the applicant. The report from the District Children’s Officer Nandi North/ South District dated 16th February 2004 also clearly recommended the adoption of the infant K.A. by the applicant. However my ruling of 26th May 2004 granted custody of the infant to the applicant.
I am satisfied that the order that I issued for custody in my ruling of 26th May 2004 was an error. The correct order should have been an order for the adoption of the infant. I am of the view that the justice of the matter requires that I review my earlier order. I therefore hereby review my order of custody of 26th May 2004 and substitute it with an order that I grant the ADOPTION of the infant K.A. (N.K.T.) to the applicant E.K. as prayed in the Originating Summons.
Dated at Eldoret this 5th day of December, 2005.
George Dulu
Ag. Judge
In the presence of: