https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9320

In re MK (Minor) (Adoption Cause E292 of 2024) [2026] KEHC 9320 (KLR) (Family) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9320 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Adoption Cause E292 of 2024 CJ Kendagor, J June 25, 2026 IN THE MATTER OF THE CHILDREN ACT, 2022 AND IN THE MATTER OF APPLICATION FOR ADOPTION OF MK (A MINOR) In the matter of Joo 1st Applicant Jbm 2nd Applicant Judgment 1.The Applicants, JOO and JBM have filed an application by way of Originating Summons dated 17th December, 2024 seeking the following orders:i.That the Applicants JOO and JBM be authorized to adopt a child known as MK who shall henceforth be known as MK.ii.That the child’s date of birth be declared to be 8th April, 2009 and place of birth as Masaba South in Nyanza as appearing in her birth certificate.iii.That the child be deemed as to be a Kenyan Citizen.iv.That consent of biological parents is required.v.The guardian ad litem be discharged and IKM and MKK be appointed the legal guardians of the child.vi.That the Registrar General be directed to enter this adoption into the Adopted Children Register.vii.Any other Order that this court deems necessary. 2.The application is premised on the grounds on its face and in the Statement in support of the application and Affidavit of the Applicants sworn on even date. 3.This is a joint adoption application by the Applicants. The male Applicant is a Kenyan citizen, aged 64 years, born on 21st July, 1961, as evidenced by a copy of his national identification card number 16xxxx28, attached to the application. The female Applicant is a Kenyan citizen, aged 63 years, born on 23rd November, 1962, as evidenced by a copy of her national identification card number 16xxxx51, attached to the application. 4.The evidence on record indicates that the Applicants have been married since 18th October, 1984, as evidenced by a copy of Marriage Certificate Serial No. 27854, attached to the application. 5.The Applicants are residents of Nyamira County, [Particulars Withheld] Area and are currently residing in Canada. The Applicants are both retired teachers and currently in business. The Applicants profess the Christian Faith. 6.The Applicants aver that the child who is the subject of these proceedings is 16 years old, having been born on 8th April, 2009, to her biological parents, DNM and ANM, as evidenced by a copy of the birth certificate, serial number xxxx, attached to the application. 7.The evidence on record indicates that the child’s biological mother is the sister of the female Applicant. The female applicant is therefore the subject child’s aunt. 8.The Applicants state that the child has lived with them throughout her schooling and that they have supported her since childhood. The child is a Form Four student at [Particulars Withheld] Secondary School. 9.The Applicants informed this Court that the child’s biological parents have willingly offered her for adoption, have given consent to the adoption, and have filed written consent letters dated 11th July, 2025, as evidenced by copies of the consent letters attached to the application. 10.The Applicants presented copies of bank statements, police clearance certificates, a title deed, recommendations, and referee information, all pursuant to the provisions of The Children (Adoption) Regulations, 2020. These documents disclose that the Applicants are financially, socially, physically, and mentally fit to adopt the child. 11.The Applicants confirmed that they understand that an adoption order is irreversible. Additionally, pursuant to Section 195 of the Children Act, 2022, the Applicants provided consent from IKM and MKK to be appointed as the child's legal guardians, and they filed the consent letters attached to the application. 12.The child consented to adoption, and she filed a consent letter dated 2nd February, 2026, attached to the application. 18.Prior to the hearing of the adoption application, KKPI Adoption Society conducted an assessment of the Applicants and prepared and filed a positive report dated 11th July, 2025. hey also issued a Certificate, serial number xxxx, declaring the child free for adoption, as evidenced by the copies of the report and certificate attached to the application. 19.The Department of Children’s Services conducted home visits, established that the Applicants are financially and emotionally capable of providing for the child’s upkeep and education, and filed a report dated 12th February, 2025, recommending the adoption on the basis that the child stands to gain from the opportunities provided by becoming the daughter of the Applicants and that the Applicants have fulfilled the statutory requirements. 20.The guardian ad litem, MMK prepared and filed a favourable report dated 22nd August, 2025, recommending the adoption of the child by the Applicants. 21.From the pleadings, the issue for determination is whether this Court should allow the adoption herein. 22.The Child is a Kenyan citizen by virtue of Article 14 (1) which provides that a person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. 23.This Court has the power to make an adoption order. Section 183 of Children’s Act, 2022 sets out requirements for adoption 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", authorizing 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….” 14.The 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 quailed 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.” 15.The qualification and disqualification for Applicants for adoption is provided for under Section 186 of the Children’s Act, 2022 as follows:(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. 16.Under Section 185 Children Act, 2022, 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 filing 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.” 17.Section 193 (1) of the Children Act, No. 29 of 2022 provides that "A kinship adoption order may only be made in favour of a relative of the child." The provision restricts kinship adoption to relatives of the child and recognizes the importance of preserving family ties by permitting adoption within the child's extended family. 18.In the present case, the Applicants are relatives of the child and are therefore eligible to seek a kinship adoption order under the said provision. In this instance, the female Applicant is the Child’s aunt. These special circumstances allow this Court to overlook the Applicants’ ages when granting the adoption orders. 19.In light of the best interests of the Child principle provided for under Article 53 (2) of the Constitution of Kenya, 2010. Sections 8 (1), (2) and (3) of the Children’s Act No. 29 of 2022 and the 1st Schedule of the Children’s Act No. 29 of 2022, this Court has an obligation to prioritize the Child’s best interests in making decisions touching on him. The relevant provisions of law provide as follows;a.Article 53 of the Constitution, 2010 states that a Child’s best interests are of paramount importance in every matter concerning the Child.b.Sections 8 (1), (2) and (3) of the Children’s Act No. 29 of 2022 provides as follows;1.In all actions concerning Children, whether undertaken by public of private social welfare institutions, courts of law, administrative authorities or legislative bodies:a.The best interests of the Child shall be the primary consideration;b.The best interests of the Child shall include, but shall not be limited to the considerations set out in the First Schedule.2.All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the Child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to:-a.safeguard and promote the rights and welfare of the Child;b.conserve and promote the welfare of the Child; andc.secure for the Child such guidance and correction as is necessary for the welfare of the Child, and in public interest.3.In any matters affecting a Child, the Child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the Child’s age and degree of maturity.c.The First Schedule as provided for under Section 8 (1) of the Children’s Act No. 29 of 2022 provides best interests considerations to be as follows:1.The age, maturity, stage of development, gender, background and any other relevant characteristics of the Child.2.Distinct special needs (if any) arising from chronic ailment or disability.3.The relationship of the Child with the Child’s parent(s) and/or guardian(s) and any other persons who may significantly affect the Child’s welfare.4.The preference of the Child, if old enough to express a meaningful preference.5.The duration and adequacy of the Child’s current living arrangements and the desirability of maintaining continuity.6.The stability of any proposed living arrangements for the Child.7.The motivation of the parties involved and their capacities to give the Child love, affection and guidance.8.The Child’s adjustment to the Child’s present home, school and community.9.The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the Child and the other parent and/or guardian(s), including physical access.10.The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in Child care.11.Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent’s/guardian’s willingness to use those methods.12.The effect of the Child if one parent/guardian has sole authority over the Child’s upbringing.13.The existence of domestic abuse between the parents/guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the Child.14.The existence of any history of Child abuse by a parent and/or guardian(s); or anyone residing in the same dwelling as the Child.15.Where the Child is under one year of age, whether the Child is being breast - fed.16.The existence of a parent’s(s) or guardian’s(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.17.Where there is a person residing with a parent or guardian, whether that person; -a.Has been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code or any other legislation.b.Has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony.c.Any other factor which may have a direct or indirect effect on the physical and psychological well -being of the Child.18.Any other factor which may have a direct or indirect effect on the physical and psychological well -being of the Child.” 20.The report from the Ministry of Gender, Culture and Children Services, State Department of Children’s Services (Nairobi County), the report from KKPI Adoption Society, the guardian ad litem and the proposed legal guardian indicate that the Child will be well taken care of in the care and custody of the adoptive parents. 21.I find that this adoption gives the Child a chance of a better life and of receiving an education in a loving and stable home with the adoptive parents. The Child was present in Court during the virtual hearing and appeared to have bonded well with the Applicants. 22.In the circumstances, I allow the originating summons dated 17th December,2024 and make the following orders:i.The applicants JOO and JBM are hereby authorized to adopt MK who shall henceforth be known as MK.ii.IKM and MKK are hereby appointed as the legal guardians of the child.iii.The child is a Kenyan Citizen by Birth and is entitled to all rights and privileges as such.iv.The child date of birth shall be 8th April,2009 and her place of birth shall be Masaba South, Nyanza as appearing in her birth certificate.v.The Registrar General is directed to enter this Order in the Adopted Children Register.vi.The guardian ad litem is hereby discharged. 18.It is so ordered. DATED AND DELIVERED AT NAIROBI ON THIS 25TH DAY OF JUNE, 2026.……………………C. KENDAGORJUDGEIn the presence of:Court Assistant: Beryl