[2008] KEHC 3497 (KLR)
The court found that DWW, as the grandmother and custodian of the child since birth, raised serious issues regarding the welfare of the child and the validity of the father's consent to adoption, given his medical and psychiatric condition. The court determined that these issues could only be properly addressed...
Source-derived case information.
- Citation
- [2008] KEHC 3497 (KLR)
- Parties
- Respondent: MDBM; Applicant: DWW
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 2 of 2006
- Procedural Posture
- Adoption Cause / Application to Set Aside Adoption Orders Prior to Inter Partes Hearing
- Outcome
- Application allowed; adoption orders set aside; matter to be heard inter partes.
- Judges
- K Bauni
- Legal Topics
- Adoption Procedure, Consent to Adoption, Custody of Child, Grandparent Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MDBM
Respondent
DWW
Applicant
Procedural Posture
Adoption Cause / Application to Set Aside Adoption Orders Prior to Inter Partes Hearing
Legal Issues
- 1 Whether the adoption orders granted to MDBM should be set aside pending a full inter partes hearing.
- 2 Whether DWW, as the grandmother and custodian of the child since birth, should be heard before final adoption orders are made.
- 3 Whether the consent given by the child's father, who is alleged to be sickly and under psychiatric care, was valid and rational.
Ratio Decidendi
The court found that DWW, as the grandmother and custodian of the child since birth, raised serious issues regarding the welfare of the child and the validity of the father's consent to adoption, given his medical and psychiatric condition. The court determined that these issues could only be properly addressed through a full inter partes hearing, where all parties with a legitimate interest in the child's welfare are given an opportunity to be heard. Accordingly, the court set aside the adoption orders previously granted to MDBM and directed that the adoption application be heard inter partes, ensuring that the principles of natural justice and the best interests of the child are upheld.
Court Disposition
Application allowed; adoption orders set aside; matter to be heard inter partes.
Orders
- The application by DWW is allowed.
- The adoption orders granted to MDBM are set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Adoption Cause 2 of 2006
IN THE MATTER OF RW
MDBM.............:……..APPLICANT
RULING
MDBM made an application seeking to be allowed to adopt RW a child who was born on 16th February 1999 to PMW and MNM, both a husband and wife. However MNM the mother of the child died on 20th March 1999 which was just over one month after the birth of the child. On 29th December 2000 MDBM (applicant) married PMW the father of the child. Though MDBM is a Kenyan she now resides and works in NORWAY. She stated that the father of the minor is sickly and she wants to travel with him and the child to Norway and hence the need for adoption orders. On 26th September,2007 this court granted adoption orders to MDBM. However on 27th September DWW filed the present application seeking court to set aside the adoption orders given and the adoption application be heard inter parties.
In her supporting affidavit and submission by her counsel, the applicant stated that she is the mother of PMW the father of RW the subject of these adoption proceedings. The mother of the child passed on one month after the child was born and that she, the applicant, had stayed with the child in her custody since that time up to date. She stated that MDBM left for Norway in 2001 leaving the child and his father. She further deponed that PMW the father of the child is sickly and incapable of making a rational decision.
MDBM the respondent on her part swore affidavit and stated she had been taking care of the child all along and that the father, though sickly has given his consent for the adoption.
I have considered the application and the prevailing circumstances. I find that the applicant has brought to the fore serious issues which can only be addressed after a full hearing. She has stated that the child has been in her custody since birth. She is the grandmother and should have a say in the adoption issues. The mother of the child died one month after birth. Respondent married the father in December 2000 but it seems she left for Norway soon thereafter. There must have been a person taking care of the child all that time and the applicant claims to have done it. There is medical evidence showing the father is sickly. Infact there is medical report showing that he has been consulting a psychiatrist and is HIV positive. He is currently on medication for the psychiatric problem and on A.R.V.S. The issue of whether he could therefore have made a rational decision when giving his consent need to be addressed.
From the above therefore I find the application is well merited and the applicant DWW being the grandmother of the child has a right to be heard before final adoption orders are made. I therefore allow the application and set aside the adoption orders granted by the court and order that the adoption application be heard inter-parties.
Costs in the application.
Dated and Delivered on 22nd day of January, 2008.
KABURU BAUNI
JUDGE
DELIVERED IN THE PRESENCE OF:-
C/C - David
Kiboi for Arunga for Applicant
N/A - for Respondent