[2016] KEHC 8175 (KLR)
The court found that the deed of settlement executed by the parties on 12th October 2011, which settled the issue of child custody by consent, is binding as a contract between the parties. The respondent did not provide any reasons or grounds to justify departing from the deed or to warrant a review of the order...
Source-derived case information.
- Citation
- [2016] KEHC 8175 (KLR)
- Parties
- Petitioner: M F M D C S; Respondent: F B
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 30 of 2012
- Procedural Posture
- Divorce Cause / Ruling on Application for Review of Custody Order
- Outcome
- application for review disallowed
- Judges
- DN Musyoka
- Legal Topics
- Child Custody, Deed of Settlement, Divorce Decree, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M F M D C S
Petitioner
F B
Respondent
Procedural Posture
Divorce Cause / Ruling on Application for Review of Custody Order
Legal Issues
- 1 Whether there are sufficient grounds to review the order of 7th May 2015 regarding child custody.
- 2 Whether the deed of settlement executed by the parties should govern the issue of child custody.
Ratio Decidendi
The court found that the deed of settlement executed by the parties on 12th October 2011, which settled the issue of child custody by consent, is binding as a contract between the parties. The respondent did not provide any reasons or grounds to justify departing from the deed or to warrant a review of the order made on 7th May 2015. Consequently, the court was not convinced that there were good grounds for reviewing the order, and the application for review was disallowed.
Court Disposition
application for review disallowed
Orders
- The application dated 22nd June 2015 is disallowed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
DIVORCE CAUSE NO. 30 OF 2012
M F M D C S………………PETITIONER
VERSUS
F B………………………….RESPONDENT
RULING
1. The respondent moved the court by a Motion dated 22nd June 2015 for review of an order made herein on 7th May 2015.
2. The order in question reviewed the divorce decree to the extent it allowed joint custody of the children so that child custody was subjected to a deed of settlement executed between the parties on 12th October 2011. The issue of the deed did not come up at the hearing of the suit, and it was therefore not considered at the determination of the petition.
3. The respondent argues that he has moved the Children’s Court on the basis of the decree.
4. It is not disputed that the parties had executed the deed of settlement, which appears to have governed their relations so far as the children are concerned for the period between 12th October 2011 and the date of the divorce decree.
5. The deed settled the issue of the custody of the children by consent. It is binding on the parties, for it is a contract between them. The respondent has not given any reasons as to why he does not wish to have the issue of child custody governed by the deed.
6. I am not convinced that there are good grounds for reviewing the order of 7th May 2015. The application dated 22nd June 2015 is accordingly disallowed. There shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 26TH DAY OF OCTOBER, 2016.
W. MUSYOKA
JUDGE