[2011] KEHC 2948 (KLR)
The court found that the applicants had fulfilled all legal requirements for a local adoption under the Children Act, 2001. The child had been abandoned, and despite efforts, the biological parents could not be traced, justifying the dispensation of their consent. The applicants had demonstrated the capacity to...
Source-derived case information.
- Citation
- [2011] KEHC 2948 (KLR)
- Parties
- Applicant: W.A.S.; Applicant: P.M.S.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 154 of 2009
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- adoption granted
- Judges
- LK Kimaru
- Legal Topics
- Adoption of Children, Best Interests of Child, Parental Rights and Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
W.A.S.
Applicant
P.M.S.
Applicant
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the applicants have met the legal requirements for a local adoption under the Children Act, 2001.
- 2 Whether it is in the best interests of the child to be adopted by the applicants.
- 3 Whether the consent of the biological parents can be dispensed with due to abandonment.
Ratio Decidendi
The court found that the applicants had fulfilled all legal requirements for a local adoption under the Children Act, 2001. The child had been abandoned, and despite efforts, the biological parents could not be traced, justifying the dispensation of their consent. The applicants had demonstrated the capacity to provide for the child, and all relevant agencies recommended the adoption. The court determined that it was in the best interests of the child to be adopted by the applicants, who would assume all parental rights and duties. The adoption order was therefore granted, with the child to be known as A.M.S., and legal guardians appointed in the event of misfortune befalling the applicants.
Court Disposition
adoption granted
Orders
- The applicants, W.A.S. and P.M.S., are allowed to adopt baby A.K., who shall henceforth be known as A.M.S.
- J.K., J.K.S., and E.K.S. are appointed legal guardians of the child should misfortune befall the applicants.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
ADOPTION CAUSE NO.154 OF 2009
IN THE MATTER OF THE CHILDREN ACT, 2001
AND
IN THE MATTER OF BABY A.K aka A.M
S – MINOR
W.A.S.……………………………..…..……..……………………………………….1ST APPLICANT
P.M.S…………………...............……………….…………………………………2ND APPLICANT
J U D G M E N T
The applicants, W.A.S and P.M.S, are husband and wife. They were married in Kisii District on 26th December 1982 under the African Christian Marriage and Divorce Act. The applicants have been blessed with four (4) children aged between 26 and 16 years. The children are all daughters. The applicants wish to adopt a male child because of their desire to raise a male child in their family. Baby A.K (the child) is presumed to have been born on 30th April 2005. The child was abandoned by his biological parents at Kibera Olympic area on 27th December 2005. The matter was reported to Kilimani police station. The child was admitted at Kenyatta National Hospital. He remained at the hospital for a period of two months before he was taken to Abandoned Baby Center Children’s Home on 23rd February 2006. The Children’s Court, Nairobi committed the custody of the child to the said Children’s Home on 25th February 2009. Efforts by the police and other relevant authorities to trace the whereabouts of the biological parents of the child have been in vain. This court therefore dispenses with the consent of the biological parents of the child for the purpose of these adoption proceedings. The child was declared free for adoption on 28th January 2010 by Child Welfare Society of Kenya adoption society. A certificate to that effect is in the court file. The child has been under the care of the applicants since 7th August 2006 when the applicants assumed custody.
The applicants were assessed by Child Welfare Society of Kenya adoption society and by the Director of Children’s Services. The two organizations recommend the application by the applicants to adopt the child. P.B.O, the guardian ad litem, also prepared a report which is favourable and recommends the proposed adoption. This is a local adoption. As stated earlier in this judgment, the applicants are a married couple who have expressed their wish to adopt a male child. The applicants are Kenyan citizens by birth. They established that they have the financial and emotional capability and capacity to take care of the child. In the period of more than four (4) years that the child has been in the applicants’ custody, it was evident to the court that the child has bonded with them. The child considers the applicants to be his parents. All the relevant agencies have recommended the proposed adoption. This court is of the view that the applicants have fulfilled all the legal requirements for a local adoption.
This court formed the opinion that it would be in the best interest of the child for the child to be adopted by the applicants. The applicants will provide a home and a family for the child to grow up and be a useful member of the society. The applicants will be required to execute an undertaking that they shall assume all parental rights and duties of the biological parents in respect of the adopted child; they shall treat the adopted child as if he was born to them in their marriage; they have been made aware that once the adoption order is issued, it shall be final and binding during the lifetime of the child that they shall adopt; that the child shall have the right to inherit their property; that an adoption order cannot be recanted, and further, that they shall not give up the child owing to any subsequent unforeseen behaviour or other changes in the child.
The court will therefore allow the applicants’ application to adopt the child. They have fulfilled the legal conditions for a local adoption by a married couple. The applicants, W.A. S and P. M.S, are hereby allowed to adopt baby A.K. Henceforth, the child shall be known as A.M.S. J.K, J.K.S and E.K.S shall be the legal guardians of the child should misfortune befall the applicants. The Registrar General is hereby directed to enter this adoption order in the Adoption Register. The guardian ad litem is hereby discharged. It is so ordered.
DATED AT NAIROBI THIS 27TH DAY OF APRIL, 2011
L. KIMARU
JUDGE