https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8911

In re AJ (Child) (Adoption Cause E003 of 2026) [2026] KEHC 8911 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 8911 (KLR) Republic of Kenya In the High Court at Vihiga Adoption Cause E003 of 2026 RN Nyakundi, J June 25, 2026 IN THE MATTER OF THE APPLICATION FOR ADOPTION ORDER In the matter of GO 1st Applicant MAJ 2nd Applicant Judgment 1.The Applicants herein filed Originating Summons for an adoption order dated 12th May 2026 premised under Sections 2, 183, 193 and 194 of the Children's Act No. 29 of 2022 seeking the following orders: -a.That VO and ROS female and male adults of sound mind respectively, both of C/O Post Office Box Number 934-40100 Kisumu be appointed as Guardians ad litem in this matter, in the event the Applicants are incapacitated or in any way unable to discharge their parental obligations, shall remain the child's legal guardians.b.That the Children's Department office in Vihiga investigates the Applicants' fitness to adopt the Baby AJ and file a report in court.c.That the Applicants GO and MAJ be authorized to adopt Baby AJ and that an adoption order be issued and be extracted in the prescribed form under the Children's Act and Rules.d.That the Baby be henceforth formally known as AJ and that the registrar of Births and Deaths do issue the said Baby AJ with a birth certificate containing her full names.e.That the Registrar General be directed to make the appropriate entries in the adopted Children's Register to reflect the adoption of the child baby AJ by the adoptive parents herein GO and MAJ.f.That the court be pleased to make any further orders it deems necessary. 2.The Application is made on the grounds that the orders sought are in the best interest of the child. The Application is also supported by the annexed Affidavit of the Applicants. 3.The Applicants also swore a Statement in support of the Originating Summons and stated as follows: -a.That we wish to adopt AJ a child of the female sex (hereafter referred to as "the Child") born on 17th July 2023.b.That we know of our own knowledge and are informed by Little Angels Network, the adoption agency investigating the history of the child as follows: -a.The Child was born on 17th July 2023 at Kisumu Specialist Hospital, Nyanza Province to Glory Mshindi Shekinah who is our daughter and a Student at Kenya Medical Training College in Kisumu.b.That since birth, the Child has been under our care.c.That the Child was conceived in October 2022 when the biological mother had gone on vacation to Mombasa with two female friends. During the said vacation, she spent time socializing and attending parties where she engaged in sexual intercourse with three different men. She did not exchange contact information with any of the men.d.That the Child's biological mother discovered that she was pregnant three weeks later. She contacted the apartment manager of the apartment they had stayed in Mombasa to assist in identifying or reaching the men she had met. Her efforts were unsuccessful and she could not trace them.e.That the Child's biological mother deferred her studies and went back home to her parents where she carried the pregnancy to term and gave birth. She later resumed her studies in Clinical Medicine.f.We have since provided consistent financial and emotional support and have played a significant role in raising the Child from birth. We have cared and provided for her as our own child.g.The biological mother willingly signed the Certificate of Acknowledgment and Consent on 14th January 2026 abdicating her rights and responsibilities as the child's mother and agreeing to have us adopt the child.h.The Vihiga Sub-County Children's Office through their letter dated 3rd December 2025 confirm that the Child is currently under our care and we have the capability to care for her.i.The Chief Izava North Location through letter dated 26th November 2025 confirms that we are the biological mother's parents.j.The child was declared free for adoption by the Case Committee of Little Angels Network after inquiry and deliberation on the matter. Further, the committee was satisfied that adoption would be in the best interest of the Child.c.That we were born on 5th December 1969 and 18th February 1976 respectively.d.That we are citizens of Kenya and currently reside in Mbale, Vihiga County.e.That we are married to each other.f.That we are a businessman and chief officer respectively.g.That the Little Angels Network has consented to our request to adopt having investigated our fitness to adopt a child.h.That we have appointed VO and ROS, as Legal Guardians of the Child in the event of our death.i.That we are physically and emotionally fit and healthy and therefore fully competent in this regard to parent and take care of the child.j.That we are capable of assuming financial responsibility for the Child's medical care, education and general upkeep.k.That we have a home with a comfortable environment, which is suitable for nurturing children and ensuring their full development.l.That we are practicing Christians and we intend to bring up the Child in the said faith.m.That we have never been convicted of a criminal offence or of any offence referred to in the third schedule of the Children Act 2022.n.That we have not received or agreed to receive and no person has made or given or agreed to give us any payment or reward in consideration of the adoption.o.That we have no interest in the matter adverse to those of the Child.p.That if an adoption order is made, it is proposed that the Child be named AJ.q.That we do not have any other children; biological or adopted.r.That the child is currently under our care. 4.The consent to act as Guardian Ad Litem of Baby A J was also filed by VO and ROS of C/O P. O. Box 934-40100 Kisumu who deponed as follows: -a.That we are adults of sound mind and disposition, competent to swear this affidavit.b.That we are conversant with the facts of the application by GO and MAJ for the adoption of the Child.c.That we are husband and wife and are the applicants' sister and brother-in-law respectively. Consequently, we have interacted with them closely as family.d.That we live in Tigoi.e.That we are aware of what we have been called upon to do in our role as Guardian ad litem of BABY AJ.f.That we have no interests in this adoption that are adverse to the interests of the Child.g.That we consent to being appointed Guardian ad litem in this application. Analysis and Determination 5.The adoption proceedings are governed by the Children’s Act 2022 which provides inter alia in section 2 that: “adoption” means the process through which a child is permanently placed with a legal parent or parents in accordance with Part XIV; “adoption order” means an adoption order made under section 183 vesting the parental rights and responsibilities relating to a child in the adopter; “adopter” means a person in whose favour an adoption order is made. 6.Part XIV of the Children Act 2022 provides for Adoption. Specifically, section 183 of the Children Act 2022 provides as follows;183.Power to make adoption orders(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 7.Moreover, section 185 of the Children Act 2022 provides for children who may be adopted and states 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. 8.The purpose of adoption orders under the Children’s Act 2022 is an entrenchment of Article 53 of the constitution which provides as follows:(1)Every child has the right-(a)to a name and nationality from birth;(b)to free and compulsory basic education;(c)to basic nutrition, shelter and health care;(d)to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and(f)not to be detained, except as a measure of last resort, and when detained, to be held-(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that takes account of the child’s sex and age(2)a child’s best interests are of paramount importance in every matter concerning the child. 9.What is the rationale of the law on adoption orders? The adoption orders erase the rights and obligations of the biological parents and substitutes new parents for the biological ones. This is the dictum of the court in O’Connor v A and B [1971] 1WLR 1227 at pages 1235-1236. Thus:The upbringing of its members until they are in a position to assume independent membership must be the concern of any society. Nevertheless, for a number of reasons, societies generally delegate the main responsibility for the upbringing of their infant members to the natural parents. Hence arises a reciprocal primary right in the natural parents to bring up their own child. The right of the child to be decently brought up to adult membership of the society needs no analysis or expatiation. But there will be some natural parents who do not wish to enjoy the rights, with their concomitant obligations, of bringing up their natural child — indeed, wish to surrender such rights and obligations. On the other hand, there will be people who, for various reasons, will wish to enjoy such rights and assume such obligations in respect of a child who is not their natural child. Adoption is the procedure whereby the two classes of adults — those who wish to surrender their rights and obligations in respect of a child and those who wish to assume them — are brought together, so that the latter are legally substituted for the former in relation to the child in question. The legal metamorphosis finds its quintessential expression in section 13 (1) of the Adoption Act 1958 whereby:“Upon an adoption order being made, all rights, duties, obligations and liabilities of the parents … of the infant in relation to the future custody, maintenance and education of the infant, … shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock; and in respect of the matters aforesaid (and, in Scotland, in respect of the liability of a child to maintain his parents) the infant shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock.”The volunteers to perform a social duty primarily imposed on others who are unwilling themselves to perform such duty acquire thereby a right to be considered; and once they actually enter upon the performance of responsibilities towards the child acquire thereby a further right to be considered. 10.In all the considerations to support the welfare and the best interest of the child was underscored by the court in re McGrath (Infants) [1893] 1 Ch 143 in which the issues was addressed as follows:“… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.” 11.In this instance case, the Applicants attached consent by VO and Robert Okach Sindingi to act as Guardian Ad Litem of Baby AJ, Affidavit if Fitness of Guardian Ad Litem, Certificates of Declaration a Child Free for Adoption Nos 002636, Reports to Declare a Child Free for Adoption pursuant to Section 184(1) (a) of the Children Act for AJ, Certificate of Birth for AJ, Letter of Consent by the biological mother to the child, one Glory Shekinah Mshindi, Identification Cards for Glory Shekinah Mshindi and the Applicants herein, Medical Particulars of the Child dated 24th November 2025, Letter dated 26th November 2025 from the Ministry of Interior, Letter dated 3rd December 2025 from the Ministry of Labour, Social Protection and Senior Citizens Affairs-State Department of Social Protection- Department of Children Services and Affidavit of the biological mother of the child sworn on 6th February 2026. 12.Notably, Hilda Mimo, County Coordinator Children Services, State Department for Children Services, Vihiga Sub-County, filed a Home Visit Report dated 11th June 2026 on the suitability of the Applicant herein to adopt AJ. 13.The Department of Children Services recommended that the Applicants possessed social ability considered important to their taking on parental responsibility and custody of the child permanently as would be conferred by an adoption order under Section 193 (1) of the Children Act. It added that once the court is satisfied that the child’s future was secure, final orders should be granted in favour of the Applicants. 14.This court has considered the said report which was positive and recommended the adoption of AJ by the Applicants herein and found that it would be in the best interest of AJ to be brought up in the care of the Applicants as her own biological mother had sworn an affidavit to prove that she was still a student and was not financially stable to take care of the minor. 15.It is proper to state that the Applicants have met the criteria under the Children’s Act 2022 and the Constitution to be granted an adoption order as an adoptive parent of the minor to take up responsibility and obligations as per law establish. For those reasons the following orders shall abide: -a.That a declaration be and is hereby made that VO and ROS be appointed as Guardians ad litem in this matter, in the event the Applicants are incapacitated or in any way unable to discharge their parental obligations, shall remain the child's legal guardians.b.That a declaration be and is hereby made that the Applicants G O and M A J be authorized to adopt Baby A L.c.That an adoption order be and is hereby issued and be extracted in the prescribed form under the Children's Act and Rules.d.That a declaration be and is hereby made that the Baby be henceforth formally known as A L and that the registrar of Births and Deaths do issue the said Baby A L with a birth certificate containing her full names.e.That an order be and is hereby made that the Registrar GeneraL to make the appropriate entries in the adopted Children's Register to reflect the adoption of the child baby A L by the adoptive parents herein G O and M A J.f.There shall be no orders as to the costs.g.It is so ordered. DATED, SIGNED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 25TH DAY OF JUNE 2026……………………………………..R. NYAKUNDIJUDGE