https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11804

In re Baby MM (Child) (Adoption Cause E039 of 2025) [2026] KEHC 11804 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11804 (KLR) Republic of Kenya In the High Court at Machakos Adoption Cause E039 of 2025 NIO Adagi, J July 29, 2026 IN THE MATTER OF: THE CHIDREN’S ACT NO. 29 OF 2022 AND IN THE MATTER OF: BABY MM (CHILD) ANDY and IN THE MATTER OF: AN APPLICATION FOR ADOPTION ORDER BY CMM (SINGLE APPLICANT) Judgment 1.This judgment is in respect of the Amended Originating Summons dated 8th April 2026 seeking an adoption order of the child herein. 2.The application seeks for orders that:i.The Applicant CMM be authorized to adopt the child MM and upon making the adoption order, the child be known as MM and her date of birth to be declared as 20TH February 2013 at Kangundo hospital within Machakos County.ii.The Child MM be declared a Kenyan Citizen by birth and as a consequence, be entitled to the rights and benefits of a Kenyan Citizen, including being issued with a post-adoption Certificate of Birth and a Kenyan Passport whenever desired.iii.The Registrar General be directed to make in the Adopted Children’s Register appropriate of entry of MMiv.The Guardian ad litem FMM be discharged and EMN be appointed as the legal guardian of the Child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations. 3.The application is premised on the Statement and Supporting Affidavit of the Applicant both dated 24th October 2025 and the various documents annexed to the application. 4.The Applicant is a maternal aunt to the child herein. The child’s mother and the applicant are biological sisters. The Applicant has fostered the child since 2017 and the required period of three months has since lapsed thus allowing the applicant to file this adoption. 5.The child’s mother who is a widow has consented to the adoption and has freely given her sister the child to take good care of her. 6.EMN too consented to be the Legal Guardian of the child herein. 6.That the child herein was declared free for adoption by Kenya Children’s Home Adoption Society on 17/09/2025 and was issued with a Certificate of Declaring a child Free for adoption No. 11XX. 7.The Applicant averred that, she is capable of assuming financial responsibilities of the child’s medical care, education and general upkeep. That she has no interests adverse to those of the child. 8.The Applicant confirmed that her family has fully supported them throughout the adoption process and has no objection to the adoption order sought. Analysis and Determination 9.The issue for determination is whether the court should allow the adoption herein. 10.Section 183 of the Children’s Act provides as follows: -(1)Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as "adoption order", authorising an applicant to adopt a child.(2)All proceedings under this Part shall be heard and determined in chambers, and the identity of the child and the applicants shall be kept confidential.(3)In this Act, adoption means local, kinship and foreign adoption.(4)For the purposes of this Part—(a)"kinship adoption" has the meaning assigned to it in section 2;(b)"local adoption" means an adoption in relation to which-(i)the child is resident in Kenya; and(ii)the adopting parent or parents are Kenyan nationals’ resident in Kenya; and(c)"foreign adoption" means an adoption in relation to which-(i)the adopting parent or parents are Kenyan nationals with dual citizenship;(ii)the adopting parent or parents are foreign nationals whether or not resident in Kenya;(iii)the adopting parent or parents are not Kenyan nationals but are biologically related to the child; or(iv)the adopting parent or parents were once Kenyan nationals but have lost their nationality by operation of the law of the host country to which the prospective parent or parents have a nationality. 11.Pre-requisites for adoption are also stated under Section 184 of the Children Act, 2022 as follows:(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.(2)A person, including a parent, guardian or adoption society, shall not, prior to the making of an adoption order, entrust a child to the care, possession or control of any person not qualified to adopt a child in accordance with this Act.(3)An applicant shall not preselect a prospective adoptive child except—(a)in the case of kinship adoption;(b)Where the applicant is a foster parent seeking to adopt a fostered child under the applicant’s care.(4)The Secretary shall monitor and submit reports to the courts on the wellbeing of a child who is subject to adoption proceedings.(5)Any person who contravenes subsections (1) or (2) of this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million shillings, or to both. 12.Under Section 185, Children who may be adopted are stated as follows:(1)Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was born in Kenya.(2)Without prejudice to the generality of subsection (1), no Court may entertain an application for an adoption order in respect of a child unless—(a)the child concerned has been in the continuous care and control of the applicant within Kenya for a period of three consecutive months preceding the filling of the application; and(b)the application for an adoption order is supported by a report made by a duly registered adoption society recommending that an adoption order be made.(3)The report referred to in subsection (2)(b) shall contain the society’s findings and recommendations in respect of the child and the applicant or applicants, as the case may be.(4)The following children shall be eligible for adoption—(a)a child who is an orphan and has no guardian or caregiver able and willing to take care of the child;(b)a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year;(c)children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part. 13.Under section 185, on who may apply to adopt a child, the following is the law:(1)The Court may make an adoption order on application by;(a)a sole applicant; or(b)two spouses jointly.(2)The Court shall not make an adoption order in any case unless—(a)the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and(b)the applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father or relative of the child.(4)The Court shall not make an adoption order in favour of a sole male applicant, unless the applicant is a blood relative of the child.(5)The Court shall not make an adoption order in favour of the following persons unless the Court is satisfied on reasons to be stated on the record that there are special circumstances that warrant the making of the adoption order an applicant or joint applicants who has, or both have, attained the age of sixty-five years.(6)The Court shall not make an adoption order in favour of an applicant or joint applicants if the applicant or joint applicants, or any of them—(a)is of unsound mind within the meaning of the Mental Health Act (Cap. 248);(b)is incapable of exercising proper care and guardianship of a child;(c)has been convicted by a Court of competent jurisdiction for any of the offences specified in the Third Schedule or similar offences;(d)in the case of joint applicants, if the applicants are not married to each other;(e)is a sole male applicant except where the applicant is a biological relative of the child; or(f)is a foreign applicant except where the applicant is a biological relative of the child.(7)Notwithstanding anything contained in this section the Court may at its sole discretion decline to make an adoption order in favour of any person or persons if the Court is of the view that it is not in the best interests of the child to make the order.(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons—(a)a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child;(b)on the application of one of the spouses, the consent of the other spouse; and(c)in the case of a child who has attained the age of ten years, the child himself or herself.(9)If the child referred to in subsection (8)(c) has a disability which restricts or impairs the child’s ability to independently give his or her consent, the child shall be accorded such assistance, including the assistance of an intermediary, to facilitate his or her written consent. 14.In light of the above law, I have also perused all the documents filed in court on the consent and affidavit of fitness filed by the child’s guardian ad litem. 15.The Report by the Machakos Sub-County Children Officer dated 08/07/2026 was also availed in court certifying the Applicant as meeting the legal parameters to adopt the child herein. 16.The Report by Kenya Children’s Homes Adoption Services dated 18/03/2026 as well as the report by the Guardian Ad Litem dated 05/6/2026 were also availed in court certifying the Applicant as suitable persons to adopt the child, 17.The application was heard orally in court and the Applicant, the Children’s Officer, Guardian ad litem, an Officer from the Adoption Agency and the proposed legal Guardian were in attendance and testified save for the child who was briefly interrogated by the court and she looked happy, well groomed and was very ready to have the Applicant become her mother. 18.The Applicant in my view, as supported by evidence on record, have met all the legal requirements of adoption. No doubt, the Applicants are clear with intentions to protect, support, provide inheritance for and maintain the special child as their own. 19.This is a kinship adoption. The mother to the child namely MKN who is a biological sister to the applicant willingly consented to the adoption. The recommendation reports by the Children’s Officer and the Adoption agency too give the Applicant the go ahead to adopt the child herein. They describe the Applicant as committed to caring and maintaining the child and hold the view that the adoption herein sought will be in the child’s best interest. 20.I am satisfied the Applicant and the child have bonded well. The child looked happy and jovial; she is in good hands. I am satisfied that the child will be in a good home under good care. 21.The legal guardian FMM be confirmed that he signed the consent to act as the legal guardian and understood his role well. 22.The Kenya Children’s Homes Adoption Services confirmed that they issued the Certificate declaring the child in this matter is free for adoption under Serial No.11XX. They also assessed the Applicant, found her suitable and duly counselled her on adoption. 23.Having listened to the evidence and perused the supporting documents presented in the matter and having considered the requirements for adoption, I find that the Amended Originating Summons dated 8th April 2026 is merited and as such I allow the same. Disposition 24.In the upshot, I make the following orders:a.The Applicant CMM is hereby authorized to adopt the child currently identified as MM (Names not to be published).b.The child shall be known as MM (Name not to be published).c.The Registrar General is hereby directed to make the appropriate entry of MM in the adopted Children’s Register.d.The child MM be presumed to be a Kenyan citizen born in Kenya on 20TH February 2013 at Kangundo hospital within Machakos County.e.The Director of Immigration Services to issue MM, the child herein with a Kenyan Passport whenever she will require the same.f.The Registrar General be directed to make in the Adopted Children’s Register appropriate of entry of MM.g.The Guardian ad litem FMM is hereby discharged and EMN is appointed as the legal guardian of the Child herein, in the event that the Applicant herein are incapacitated or in any way unable to discharge their parental obligations. 24.Orders accordingly. The file is closed. JUDGMENT DATED & SIGNED AT MACHAKOS THIS 29TH JULY 2026NOEL I. ADAGIJUDGE DELIVERED AT MACHAKOS THIS 29TH JULY 2026In the presence of:...................................... for ApplicantsMilly.............. Court Assistant