[2017] KEHC 1336 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

ADOPTION CAUSE NO. 2 OF 2017

IN THE MATTER OF THE CHILDREN’S ACT 2001

AND

IN THE MATTER OF BABY A AKA A D AKA NOW A MINOR

AND

J N NTHE APPICANT

RULING

The applicant applied to this court for leave to be allowed to adopt A A D a child as provided for under the Children’s Act. That upon adoption order, the child be known as C M.

The originating summons is stated to be brought under section 154, 156, 157, 158, 159, 160, 163, 164 and 170 of the Children’s Act. In support of the application is an affidavit deponed by the applicant and filed on 3/7/2017. The applicant has stated that initially she entered into a marriage union where they were blessed with one sibling and for purposes of these proceedings referred to as S.I.A. That marriage however did not last long as it ended up being dissolved on or about 7. 5.2005.

According to the application she has been self employed as a business lady selling clothes with an approximate monthly income of Ksh.200,000. This income the applicant depones that it helped her to own a house at Gimu Estate where she resides with her family. The applicant further demonstrated by way of annexing a certificate of good conduct from both in Kenya and other jurisdictions that she has no criminal record.

Besides the biological child who still lives with her, the applicant deposes that she is desirous of adopting another child. That opportunity the applicant states came knocking when she got a request from New Life Home Trust. The applicant further avers that this culminated into the child being placed under her care since 31/3/2017 subsequently that both have continuously lived together under her care and custody since. This request to adopt her to be part of the family is meant to formalise the relationship.

The applicant states that a couple referred as P M M and R M M have consented to be the legal guardians of the minor in the event of death before she could attain the age of maturity. In order to confirm their commitment to the application, the proposed guardians filed an affidavit dated 3/7/2017. The adoption agency duly registered in Kenya as Little Angels Network Society received the application by the applicant way back in 22nd November, 2016. The report is attached to the originating summons. The agency assessed the applicant comprehensively on her personal profiles, background check, social-economic indicators and her capability to adopt the minor. In terms of the report the applicant was found to have met the legal and social parameters for adoption order to issue in her favour.

The evidence from New Life Home Trust indicated that the minor subject matter of these proceedings was born on 5/4/2016. She was found abandoned at Gatukuyu area where she was rescued by good Samaritans and taken to the police station at Mwea. The police and other investigating agencies commenced an inquiry with a view to find the biological mother/or parents. The final letter from the police dated 25/11/2016 indicated that no known parent or relative has come forward to claim the child. This therefore became to be a case of an abandoned child with no known parents within Gatukuyu area or anywhere in Kenya. The child remained in the custody and care of New Life Home Trust as unclaimed for a period of six months.

In terms of their mandate a case committee duly constituted deliberated on the matter. The committee in their minute dated 28/2/2017 was satisfied that the child is available for adoption in her best interest. The Children’s Service under the Constitution and enabling Laws must always think about the best interest of the child throughout his/her life. In accordance with the children’s Act and Adoption Regulations a detailed report dated 13/9/2017 in support of this application was filed before this court.

Having reviewed the child’s case it was established that there is no one who can look after her safety and in a way that will be in her best interest. In their recommendation the children services has listed all the material that they have taken into account.

In reaching their decision about the plan to adopt the minor it includes records of discussions they have held with the applicant, her family and the adoption agency. They have identified the main arguments in favour of adoption and set out the reasons for making the decision of recommending the applicant to adopt one A.D whose name will be from now henceforth be C M. It is clear from the Director of Children Services that the biological mother, parents or extended family have never shown up despite several inquiries and investigations. In a nutshell the reports from Little Angels Network, New Life Home Trust and the Director Children’s Services recommend the application for adoption of the minor.

I have considered the originating summons, the affidavit in support, the relevant reports by the various agencies particularized elsewhere in this ruling and the applicable provisions of the law. The following threshold criteria has been met:

The child in this case was allegedly born on 5/4/2016. She was found abandoned at Gatukuyu area.

The Children’s Court at Gatundu committed the child to the custody of New Life Home Trust on 23/8/2016 for about six months and nobody has come forward to claim paternity.

The applicant J N N is a single mother aged 47 years.

Under section 158 (1) (a) of the Children Act 2001 it provides thus:

“An adoption order may be made upon the application of a sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants:

(a) 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.”

Applying section 158 (1) (a) of the Act the child being adopted is aged 1 year old and 4 months. The child has been living with the applicant since 30/3/2017. The age difference as between the applicant and the child has been met in this case.

Under section 156 (1) of the same Act it provides interalia that “no arrangements shall be commended for adoption unless and until the child is at least six weeks old and has been declared free for adoption by a registered adoption agency.”

In our situation the applicant has complied with section 156 (1) in the sense that the child is more than six weeks old. Secondly, Little Angels Network is a registered adoption agency in Kenya. In their report dated 2/12/2016 they have declared the child A D free for adoption. The children services’ was notified of the intention by the applicant to adopt the child. As confirmed the Children Services filed a report on the suitability of the applicant to adopt the child.

The other issue the court must consider falls under section 159 (1) of the Children’s Act on parental consent. The general principle of law under this section is that a court can only make an adoption order if the parents who have parental responsibility agree to the adoption.

What emerges from the evidence in the file all urgent measures were taken to trace the biological parents or any other extended family member of the child. As at the time of filing and adjudicating over this adoption cause no substantial information was available as to the existence or whereabouts of the parents. The parental consent being a requirement of the law is therefore dispensed with in this case.

When exercising discretion in deciding whether to allow the adoption or not, the court must not loose sight of the best interest principle. The Kenyan Constitution 2010 provides as follows in Article 53 (2) “a child’s best interests are of paramount importance in every matter concerning the child.”

According to section 4 (1) of the Act, “every child shall have an inherent right to life and it shall be the responsibility of the government and the family to ensure the survival and development of the child;

(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

In determining that criteria to the present case as to what will be the best interest of the child A D i find the following indicators relevant from the material placed before me:

The child was found abandoned immediately after birth on an environment harsh enough to subject her to death. By this adoption she will find home, affection, warmth, care and emotional ties which are basic needs between a mother and the child. The profile of the applicant as established from the reports by the Little Angels Network, the Director of Children’s Services and the guardians portrays her as a responsible, calm temperament, good character, mental and physical fitness to be able to bring up the child responsibly. The applicant also has the financial resources and a home to be able to provide the basic needs of the child like clothing, food, medicare, housing, security, education etc.

It has also been noted that the applicant is a God fearing mother that endears her to provide religious teachings and moral values to the child. The circumstances of this application are such that this is the only mother and physical environment of a family set up the child has ever known. This suitability of the environment and bonding the applicant has undertaken with the child cannot be ignored. I am therefore satisfied that the adoption of the minor A D by the applicant would be in her best interest.

The result of the foregoing is that this court exercises discretion in favour of the applicant in the following terms:

(1)That the applicant J N N be allowed to adopt the minor child referred as A D who shall henceforth be known as C M.

(2) Her date of birth shall be on 5/4/2016 place Gatukuyu area Kiambu County.

(3)The Director of Births and Registration is hereby directed to issue the minor with the birth certificate.

(4)That the Registrar to make appropriate entries to that effect of the child being a Kenyan citizen.

(5)That the legal guardians for the minor would be and remain to be P M M and R M M.

(6)That orders for costs be borne by the applicant.

Dated, signed and delivered in open court at Kajiado on 29/11/2017.

…………………………………..

R. NYAKUNDI

JUDGE

Representation:

Ms. Muhanda counsel for the applicant

Applicant

Legal guardians

Mr. Mateli Court Assistant