In re K Z (Baby) [2017] KEHC 2439 (KLR)

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