[2022] KEHC 1669 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT ELDORET

ADOPTION CAUSE E006 OF 2021 (OS)

IN THE MATTER OF THE CHILDREN’S ACT

AND

IN THE MATTER OF AN APPLICATION FOR ADOPTION BY MJN (APPLICANT)

FOR THE ADOPTION OF JCN (THE MINOR)

RULING

1. The application before the court is an Originating Summons dated 12th October, 2021 seeking substantively the adoption of JCN a minor, by the Applicant MJN. From the record, the Applicant is a Kenyan Citizen residing in the United States of America and works as a [Particulars Withheld] at [Particulars Withheld] Organization.

2. The Applicant is the paternal Aunt of the Minor. The father of the Minor, JCN is the Applicant’s brother. The Minor has been leaving with the Applicant’s mother (her grandmother) since she was (1) year when the parents separated and went separate ways. The Applicant has been taking care of the Minor’s expenses while the minor lives with her grandmother. The minor’s grandmother has since applied for an American residency and will be relocating to America to live with the Applicant leaving the minor without anyone to care for her. That it is fundamental that the Applicant adopts the minor to ensure that the minor receives the needed care and protection.

3. On 7th May, 2021 the Applicant received written consent from both of the minor’s parents to adopt the minor.

4. Prior to the hearing of the adoption application, Little Angels Network prepared and filed a report dated 4th August, 2021. They also issued a Certificate Serial No. [Particulars Withheld] dated 4th August 2021 declaring the child free for adoption. The adoption agency also visited the Applicant’s home in Eldoret before approving the adoption of JCN by the Applicant.

5. Article 53 (2) of the Constitution provides the over-arching principle which must apply whenever any decision concerning a child is to be considered. It provides that:

“A child’s best interests are of paramount importance in every matter concerning the child”

This constitutional and internationally applicable principle is embedded and amplified in the Children’s Act, No 8 of 2001, particularly at section 4 (3) of the Act.

6. This indeed is a kinship adoption because the Applicant is an aunt to the child. The Applicant desires the child to join her and her grandmother in the USA.

7. In re R.N.W. (minor) (2019) eKLRit was stated as follows;

“11. This is a Kinship Adoption as the applicant is related to the child since the child's biological mother was a cousin to the Applicant.

12. Lady Justice Achode In re J.N.A. [2018] eKLRheld that:-

‘The indefinite moratorium issued by the Kenyan cabinet on 27th November, 2014 involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenya applicants, even those living abroad. Dual citizenship in our country is anchored in Article 16 of the Kenyan Constitution.

According to the Guidelines for Alternative Family Care of Children in Kenya page 153, “kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child.” Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoptions. This is therefore considered to be a local adoption.”

8. This court is satisfied that in the present case, this is a kinship adoption, and is also a local or domestic adoption. The court is also satisfied that the Applicant is a suitable person with the demonstrated financial and social means to provide and care for the Minor, and has been doing so for a considerable period prior to making this application. It is worth noting that the minor and her grandmother share a close bond and it will be prudent that the minor joins her grandmother who is relocating to the USA.

9. Having taken into account the foregoing factors, this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicant. The Court is further satisfied that all the legal requirements for a kinship adoption have been met and makes the following Orders:

i. The Applicant MJN be and is hereby allowed to adopt JCN (minor).

ii. RKN and JCR are hereby appointed as the legal guardians in the event that the Applicant dies, or is incapacitated by ill health.

iii. The Registrar General is directed to enter this Order in the Adopted Children’s Register.

iv. The Director of Immigration is hereby authorized to issue the child with a Kenyan Passport.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 10TH DAY OF MARCH, 2022

E. K. OGOLA

JUDGE