OK v HK [2022] KEHC 362 (KLR)

OK v HK (Civil Appeal 1 of 2021) [2022] KEHC 362 (KLR) (Family) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 362 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 1 of 2021

AO Muchelule, J

May 5, 2022

Between

OK

Appellant

and

HK

Respondent

(Being an appeal from Children Case No. 277 of 2020 at Nairobi from orders given by Senior Resident Magistrate Hon. H.M. Mbati on 6th January 2021)

Ruling

1. The applicant OK alleged in her application dated 2nd November 2021 for the review of the court’s ruling dated 28th October 2021 that the court had misapprehended the evidence by the respondent HK, which evidence, she stated, was a misrepresentation of facts. Her second complaint was that the Parental Responsibility Agreement that formed the basis of the orders by the trial court was obtained by duress.

2. First, if this court misapprehended the evidence by the respondent, what was open to the applicant was to appeal the decision, and not seek its review. Indeed, in Nyamogo and Nyamogo Advocates v Moses Kipkolum Kogo, Civil Appeal No. 322 of 2000 [2001] I EA 173) it was held that an error or wrong or an erroneous view of evidence or of law is not a ground for review, although it may be a ground for appeal.

3. Secondly, the Agreement in question was on 6th January 2021 adopted by the trial court as its order. The adoption of that Agreement is one of the issue in the Memorandum of Appeal. The appeal has not been heard to determine whether the adoption was erroneous. The issue cannot be taken up in this application.

4. In conclusion, I find the application not merited and dismiss it with costs.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 5TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE