[2015] KEHC 7430 (KLR)
The court found that the statutory requirements for adoption were not met. Specifically, the child had not been in the continuous care and control of the applicant for the required three months prior to the application, and there was no evaluation by a registered adoption society as mandated by law. Additionally,...
Source-derived case information.
- Citation
- [2015] KEHC 7430 (KLR)
- Parties
- Applicant: A A M; Respondent: J O
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 17 of 2014
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- application dismissed
- Legal Topics
- Adoption Requirements, Child Welfare, Guardianship, Age Difference in Adoption
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A A M
Applicant
J O
Respondent
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the applicant meets the statutory requirements for adoption under Kenyan law.
- 2 Whether the child has been in the continuous care and control of the applicant for the requisite period.
- 3 Whether the applicant's age and relationship to the child satisfy the legal criteria for adoption.
Ratio Decidendi
The court found that the statutory requirements for adoption were not met. Specifically, the child had not been in the continuous care and control of the applicant for the required three months prior to the application, and there was no evaluation by a registered adoption society as mandated by law. Additionally, the applicant was only 16 years older than the child, falling short of the 21-year age difference required by section 158(1)(a) of the Children Act. The applicant was also unmarried and not a relative within the meaning of the statute. The court further noted inconsistencies in the applicant's stated income and the imminent attainment of majority by the child, rendering the...
Court Disposition
application dismissed
Orders
- The application for adoption dated 6th June, 2014 is dismissed without orders as to costs.
- Financial assistance to the child may continue as before by both uncles.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISIII
ADOPTION CASE NO. 17 OF 2014
A A M………………………………………APPLICANT
VERSUS
J O………………………..……………………………………………..CHILD
JUDGMENT
This application for adoption of a child, J O is dated 6th June, 2014 and filed on the same date. An affidavit of support to this application is also attached to the application. The applicant for adoption is one A A M. This applicant, PW3, says he is 33 years old, stays at Birongo. He says he is a businessman. He says he has known J for now 15 years. He says he is friendly to J. However, the applicant is unmarried.
PW4, the child to be adopted is turning to the age of majority on 4th February, 2015- two weeks time. When asked whether he has been at his prospective father’s place, he says he has been there only once. He is studying at [Particulars withheld] School in Ruiru, Kiambu County. He is due to sit his KCSE this year. The adopter and the guardians ad litem are uncles to the child, he is their nephew.
For the last 16 years, the guardian ad litem have looked after J and have met his physical and educational needs todate. The court’s attention is drawn section 157(1) says:
“Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya:
Provide that no application for an adoption order, shall be made in respect of a child unless the child concerned has been in the continuous care and control of the applicant with in the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants as the case may be evaluated and assessed by a registered adoption society in Kenya”.
To my knowledge this is not the case vis-à-vis this child, he has not been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants as the case may be evaluated and assessed by a registered adoption society in Kenya. The report filed in court on 20th August, 2014 is Children’s officer’s Report, not a registered adoption society.
Further attention of the court is also drawn to section 158(1)(a)(b) and (c) which says:
“ An adoption order may be made upon the application of sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants-
Has attained the age of twenty- five years and is at least twenty- one years older than the child but has not attained the age of sixty-five years; or
Is a relative of the child; or
Is the mother or father of the child”.
The present applicant is 16 years older than the child. The applicant is unmarried, the child if anything will relate to father, not as a father but as a brother due to a very narrow age difference.
Third, the applicant’s income as stated in evidence and as appears in the report is at variance. The applicant refers to himself as a farmer or a peasant farmer but in the evidence he says he is a businessman selling agricultural products outside Kisii County.
Fourth, in two weeks’ time the child would be a young person at any rate, no longer a child. Continuation of his education is not confined to his adoption, after all, he has been assisted by his uncles without adoption process. They could continue doing the same, as their gesture is embedded in love, compassion and Christian charitable values. Thus the denial of the adoption cannot, in any way, hinder the continuation of the same.
Thus the court is not satisfied to make an order for adoption in respect of adoption cause No. 17 of 2014 and therefore the application dated 6th June, 2014 is hereby dismissed without orders as to costs. The financial assistance could however continue as in the past 16 years by both uncles to the child.
It is so ordered.
Dated and delivered at KISII this 30th day of January, 2015
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Bigogo holding brief for Kaburi for the applicant.
N/A for the child
Edwin Mongare Court Clerk.