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    The document discusses the variation of adoption orders by Kenyan courts under the Children's Act 2022. It provides: 1) The Act allows courts to vary adoption orders to correct defects in the order's particulars, such as the country of birth or probable date of birth of the adopted person. 2) Courts have wide discretion to vary orders to pursue justice, as seen in a past case where a default judgment was set aside. 3) Malawian law similarly allows for revision of adoption order particulars in the Adopted Children Register.

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    On the variation of adoption orders in Kenya and Malawi

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    The document discusses the variation of adoption orders by Kenyan courts under the Children's Act 2022. It provides: 1) The Act allows courts to vary adoption orders to correct defects in the order's particulars, such as the country of birth or probable date of birth of the adopted person. 2) Courts have wide discretion to vary orders to pursue justice, as seen in a past case where a default judgment was set aside. 3) Malawian law similarly allows for revision of adoption order particulars in the Adopted Children Register.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    3 views2 pages

    Adoption Orders

    Uploaded by

    wo wo
    The document discusses the variation of adoption orders by Kenyan courts under the Children's Act 2022. It provides: 1) The Act allows courts to vary adoption orders to correct defects in the order's particulars, such as the country of birth or probable date of birth of the adopted person. 2) Courts have wide discretion to vary orders to pursue justice, as seen in a past case where a default judgment was set aside. 3) Malawian law similarly allows for revision of adoption order particulars in the Adopted Children Register.

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    © All Rights Reserved
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    of 2

    I.

    Variation of Adoption Orders issued by Kenyan courts

    The Children’s Act 2022 recognizes the power of the court to make a variation to an adoption
    order, subject to an application made by the adopter. 1 The provision, states, in verbatim, that the
    court may “...vary the order to correct any defect in the particulars contained therein...” The
    varied order can then be lodged with the Registrar for rectification of the Adopted Children’s
    Register.

    Subsection 2 then proceeds to provide some of the particulars that may be subject to variation,
    as follows:

    (2) Where an adoption order was made before the commencement of this Act, the power of the
    Court under subsection (1) shall include power to vary the order—
    (a) by the insertion of the country of birth of the adopted person; or

    (b) where the order does not specify a precise date as the date of birth of the adopted
    person, by the insertion of the date which appears to the Court to be the probable date on
    which the person was born, and the requirements of subsection (1) will apply with
    immediate effect

    What happens after variation is that the changes are indicated in the register. No fresh
    adoptions are envisaged under the 2022 Act after a variation.

    There are Kenyan cases whereby the court will vary a domestic court order made in the pursuit
    of justice. This was the position of the court in Patel v. E.A. Cargo Handling Services Ltd [1974]
    E.A. 75 where the court set aside a default judgment issued in favour of the appellant. It was
    stated that:
    “There are no limits or restrictions on the judge’s discretion except that if he does vary the
    judgment he does so on such terms as may be just… The main concern of the court is to do justice
    to the parties and the court will not impose conditions on itself to fetter the wide discretion given
    to it by the rules.”

    There were no similar cases found on variations made to adoption orders.

    NOTE: The Adoption of Children Act (Malawi) also envisages variation of adoption orders
    issued by Malawian courts within Malawi:

    13. Revision of particulars in Adopted Children Register

    The court may, on application being made to it by, or on behalf of, a person in
    respect of whom an adoption order has been made prior to the coming into

    1
    Children’s Act 2022 Laws of Kenya, Section 199 (1)
    operation of the Adoption of Children (Amendment) Ordinance, 1958*, make an
    order directing that the particulars entered in the Adopted Children Register, and in
    the index thereto referred to in section 12 (7) relating to that person shall be
    amended to conform with the particulars which would have been entered therein if
    the adoption order had been made after the coming into operation of the said
    Ordinance, and the Registrar General of Births and Deaths shall comply with any
    such order.

    II. Variation of Foreign Adoption Orders by Kenyan Courts

    NIL.

    Section 199 (1) of the Children’s Act 2022 envisages that the court which issued the adoption
    order (Kenya) is the court with the power to order for variation of the order. This is a stretch,
    but it may be interpreted to include foreign adoption orders.

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