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High Court revokes child adoption regulation

By Harold Ayodo | October 2nd 2014

Nairobi, Kenya: The High Court has revoked a Special Legal Notice exempting the Child Welfare Society of Kenya (CWSK) from supervision during child adoption processes.

Justice Weldon Korir said that Labour Cabinet Secretary (CS) Kazungu Kambi abused his powers and also acted in bad faith when he published The Kenya Gazette No. 142 (Legal Notice No. 206) last year.

“The CS (Kambi) purported to grant a blanket exemption to the CWSK from provisions of Section 177 of the Children Act,” Justice Korir ordered.

The Law Society of Kenya (LSK) had moved to court through lawyer Mr. Joram Mwenda before 219 children were also enjoined in the suit as interested parties.

LSK was seeking orders to revoke the Legal Notice dated October 25, 2013 exempting the CWSK from registration and supervision by the Adoption Committee with respect to adoption of children.

The Attorney General Prof. Githu Muigai was also a Respondent in the public interest litigation suit in which there were eight other interested parties.

Justice Korir, sitting in Nairobi, said that the action by the Labour CS was also in bad faith.

“The basic fact is that the CWSK is in the adoption arena and there is need for it to be supervised…the CS cannot purport to remove the Society from the Adoption Committee,” Justice Korir ordered.

Justice Korir said that it was wrong for the CS to go ahead and disband the Adoption Committee for performing its mandate over the CWSK.

“The actions by the CS were exercised in bad faith and also an abuse of power,” Justice Korir ordered before annulling the Special Legal Notice.

LSK argued that The CS acted ultra vires (beyond his powers) by issuing the exemption order without such powers under the Children Act.

“The CS acted ultra vires by allowing the CWSK to carry out functions of an adoption society without supervision or accountability to the Adoption Committee as envisage in law,” LSK argued.

LSK said that the Legal Notice was also unconstitutional as it violated Article 53(2) of the supreme law.

The constitutional provision provides that a child’s best interests are of paramount importance in every matter concerning the child.

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