[2022] KEHC 10716 (KLR)

In re Adoption of Abandoned Child alias Abandoned baby Girl alias H alias I alias MH (Child) (Adoption Cause 7 of 2021) [2022] KEHC 10716 (KLR) (3 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10716 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause 7 of 2021

JN Onyiego, J

June 3, 2022

Between

CNW

Applicant

and

Little Angels Network

Respondent

Judgment

1. CNW, the applicant herein moved this honourable court vide originating summons dated September 7, 2021 seeking for orders that;a.Pursuant to article 14(4) of the constitution of Kenya 2010 and section 11 of The Children Act, 2001, this honourable court be pleased to declare the child Abandoned Child Alias Abandoned Baby Girl Alias H Alias I Alias Mh as a Kenyan citizen by birth.b.Pursuant to the provisions of section 159 of the Children’s Act, 2001, this honourable court be pleased to dispense with the requirements of the consent to the adoption as required by the provisions of section 158 of the Children’s Act, 2001. c.The applicant CNW be authorized to adopt Abandoned Child Alias Abandoned Baby Girl Alias H Alias Isamha child.d.Upon the making of the adoption order, the child to be known as HNW.e.Upon making the adoption order, DMJM be appointed legal guardians of the child as provided for by the provisions of section 164 of the Children Act, 2001. f.Upon making of the adoption order, the Registrar General do make an entry recording the adoption and the estimated date of birth of the child as May 20, 2020 in the Adopted Children Register as provided for by section 170 of the Children Act, 2001. g.The costs of this application be costs in the cause.

2. The application is supported by the averments contained in the statement in support thereof sworn on September 7, 2021. The applicant is an adult Kenyan citizen born in 1976. She is single, doesn’t have children of her own and has never been married. The motivation to adopt the baby has been ignited by the desire to be a mother and to nurture a child as she is not able to have biological children due to blocked fallopian tubes.

3. The Applicant is a business lady in Mombasa with assets in Mazeras, Shimba Hills, Mariakani and wealth management and money market fund portfolio with Britam which she has invested Kshs 1. 5 million earning her an interest of about Kshs 130,000 per year.

4. Regarding the child estimated to be born on May 20, 2020, she was found abandoned in Town View Building, Karatina town by a good Samaritan on May 21, 2020. The matter was reported at Karatina Police Station on the same day vide OB NO.25/02/06/2020. The child was taken to Karatina Sub County hospital and placed in the New Born Unit (NBU) for medical evaluation, care and protection. She was later on June 8, 2020 committed into the legal custody of Neema Infant Rescue Centre at the Senior Resident Magistrate Children’s Court Karatina vide Care and Protection Case No.7 of 2020.

5. Every effort to trace the mother or any other relative to the baby having failed as evidenced by the police final letter dated January 26, 2021, the process of adoption commenced six months after the incident was reported. Subsequently, the Little Angels Network in its meeting held on March 3, 2021, declared the child free for adoption and a Certificate S/No.xxxxx thereof issued. Subsequently, the child was placed on the mandatory care and control of the applicant on March 22, 2021

6. Upon instituting these proceedings, JMM was on March 30, 2022 appointed guardian ad litem pursuant to Chamber Summons application dated September 7, 2021. The Director of Children Services and guardian ad litem were directed to file their respective social inquiry and assessment reports within 30 days.

7. Preceding the hearing, the Director Children Services through the County Coordinator for Children Services Mombasa County filed his report dated May 5, 2022 recommending the adoption. Equally, the guardian ad litem filed her report on May 10, 2022 recommending the adoption.

8. During the hearing, the applicant urged the court to allow the application to enable her adopt the baby. She stated that she understood the consequences of adoption and that it’s permanent.

9. I have considered the application herein, materials in support and evidence by various witnesses. I am now tasked to determine the following issues; whether the baby is available for adoption; whether the applicant is fit to adopt the baby and most importantly; whether the adoption is in the best interests of the child.

10. The baby herein was found abandoned in a Salon at Town View Building in Karatina town by the salon’s owner on May 20, 2020. The matter was reported at Karatina Police Station on the same day vide OB No.25/02/06/2020. The child was later taken to Karatina Sub County Hospital for medical evaluation. She was committed into the legal custody of Neema House Infant Rescue Center by the Senior Resident Magistrate Children’s Court Karatina vide Care and Protection No.7 of 2020.

11. Despite spirited effort by the police department, children office and little Angels network to trace the minor’s parent, nothing fruitful came out of it. Accordingly, consent of the parents or guardian is dispensed with.

12. Regarding the baby’s nationality, it is clear the baby was found abandoned in Town View Building in Karatina town within the Republic of Kenya. The Constitution article 14(4) recognize that a child who is less than 8 years of age, and whose nationality and parents are not known, is presumed to be a Kenyan citizen by birth. In view of this provision, the child herein is presumed to be Kenyan citizen by birth.

13. The subject child is above 6 weeks and below 18 years which age falls within the age bracket of any adoptive baby pursuant to section 156 of the children’s Act. Further, section 157 does recognize any child who is resident in Kenya whether born in Kenya or not to be eligible for adoption. I have no doubt the child is fit and qualifies for adoption.

14. The court is required to assess the suitability of the adoptive parent and in this case the Applicant is a Kenyan citizen thus qualifying the adoption to be a local one. She is 46 years which places her under the age bracket of not less than 25 years or more than 65 years for an adoptive parent in compliance with section 158 of the Children’s Act.

15. She has been described as financially stable as she is a business lady in Mombasa with an estimated monthly income of Kshs 30,000-40,000, owns pieces of land in Mazeras,Mariakani,Shimba Hills, and also with enough resources necessary for the family support. She is caring, loving and Christian with no criminal record.

16. Since the placement of the minor into her custody on March 23, 2021, the child has fully bonded with her. She also understands the consequences of adoption and that it is permanent. She appreciates the role of a parent and admits she will treat the baby like her biological child. She is dedicated to providing suitable environment so that the child can thrive and become fruitful member of the society. To that extent, I have no doubt that she has met the necessary requirements to adopt the baby and that she will provide and promote a stable, supportive and nurturing environment for the baby.

17. In that regard, am guided by the holding in the case of In re JNA[2018] eKLR where L.A.Achode ,J stated that;“I have perused the entire record and find that the Applicants meet the social parameters that are considered relevant to their taking on parental responsibility and custody of the child in this matter, on a permanent basis as would be conferred by the adoption order sought.

18. On the question of whether the adoption is in the best interests of the baby, I am guided by article 53(2) of the Constitution and section 4(2) and (3) of the Children Act which provide that the best interests of a child principle is the primary consideration before making any decision concerning a baby.

19. The child herein was abandoned and nobody has come forward to claim her. She is like any other child in need of parental care and guidance. She needs basic necessities like food, shelter, education and clothing. She has fully integrated with the applicant. I am satisfied that this adoption is certainly in the best interests of the child. See In re HN (Baby) [2020] eKLR where the court stated;“As to whether the adoption is in the best interests of the baby, the cardinal requirement enshrined under article 53(2) of the Constitution and Section 4(2) and (3) of the Children’s Act is the consideration of the best interests of a child before making any decision affecting the affairs of a child. Considering that the minor was abandoned and has no known relative/s, it will be in her best interest that she gets a home and parents she can refer to as father and mom.”

20. In view of the above findings, it is my holding that the application herein is merited and it is in the best interests of the child that it be allowed. Accordingly, the application is allowed with orders that:a.The child is declared a Kenyan citizen by birthb.The applicant is authorized to adopt Abandoned Child Alias Abandoned Baby Girl Alias H Alias Iam who shall henceforth shall be known as HNWc.Consent of the biological parent is dispensed withd.The child is declared a kenyan citizene.The guardian Ad litem is hereby dischargedf.DMJM is hereby appointed legal guardian of the minor in the event of any eventuality befalling the applicant.g.The registrar general is directed to enter the adoption order and estimated birth date of the child as May 20, 2020 in the adopted children’s register.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RD DAY OF JUNE 2022J.N. ONYIEGOJUDGE