[2023] KEHC 25673 (KLR)

In re Adoption of LM (Baby) (Adoption Cause E054 of 2023) [2023] KEHC 25673 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25673 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E054 of 2023

PM Nyaundi, J

November 10, 2023

In the matter of

SMS

1st Applicant

ENM

2nd Applicant

Judgment

1. The Applicants, SMS and ENM vide Originating Summons dated March 28, 2023 have made an application for the adoption of Baby LM the child herein. The applicants have been married since 2016 and have attached a copy of marriage certificate number ****. They do not have a child of their own and this process will it possible for them to have one.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 12th and 26th of October 2023.

3. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The 1st applicant is a teacher and the second applicant is an agriculturalist at Kenya Horticultural Exporters 1977 Ltd. They have had custody of the child since 24th September 2022. They reside in Syokimau. They fully understand the consequences of an adoption order.

4. The child is estimated to have been born on February 24, 2020. The minor was rescued by two Good Samaritans namely R of telephone number *0*0*0*0 who is a resident of {Particulars Witheld} village and one BMN of telephone number 0*0*0*0 a resident of Laare. The said baby was found abandoned at {Particulars Witheld} farm next to {Particulars Witheld} Secondary School on February 26, 2022 at 1500hrs. One of the Samaritans B had been given casual job by R to pluck miraa and came across a baby who had been dumped at the said miraa farm.

5. The baby was rescued and taken to Kiutune Police Post and later referred the baby to Nyambane Sub County Hospital for medical attention and further intervention. The minor was approximately a day old during the time of abandonment.

6. On 26th February 2022, the matter of abandonment was reported to Kiutune Police Post and booked vide OB No.13/26/2/2022. On 26th February 2022, Good Samaritan one BMN of mobile phone number *0*0*0*0* and ID number *0*0*0*0* indicated on the witness statement the circumstances of abandonment and acknowledged to have rescued the child, and that the said Good Samaritans have never heard anyone claiming for the child.

7. On 26th February 2022, baby L was admitted at Nyambane district hospital for care and treatment and later discharged on 11th March 2022. On 11th March 2022, a report from Nyambane Sub County hospital acknowledged to have admitted the said baby in their facility in new born unit and was on exclusive formula feeding. He also received immunization at birth. During the admission to the said hospital, the baby’s weight was 1. 99kgs.

8. Upon discharge, the hospital reported that the baby‘s weight added to 2. 1 kgs and he was well and healthy. The child was discharged on the same day from the hospital at maternity new born unit and handed over to Neema House Infant Rescue Centre for care and protection.

9. On 11th March 2022, Baby L was admitted at Neema House Infant Rescue Centre for care and protection. During the admission to the home, the baby was two weeks old weighing 2. 1 Kgs. At birth, the minor was weighing 1. 9 kgs. On the same day, The Sub – County Children’s Officer in Igembe South requested the baby be committed to Neema House Infant Rescue Centre for Care and protection for a period of one year. On 11th March 2022, Baby L was committed to Neema House Infant Rescue Centre through the Resident Magistrate Court in Maua for care and protection vide care and protection no. E022/2022 for a period of one year.

10. On 16th September 2022, Kiutine Police Post issued a second police letter indicating that their efforts to trace the mother or kindred have been fruitless. On 15th September 2022 at 2. 46pm, Buckner Kenya Adoption Services made an effort to contact the Good Samaritans namely R of phone number *0*0*0*0* and BM of phone number *0*0*0*0*. They both acknowledged to have rescued baby L and reported that they have never heard or seen anyone claiming the said child. Neema House Infant Rescue Centre further reports that during his stay in the institution that no relative had turned up to claim the child, and neither have they received any information from the police department concerned regarding any claimants.

11. Prior to the hearing of the adoption application, Buckner Kenya Adoption Services prepared and filed a report dated 18th April 2023 and issued a certificate serial No. 0604 declaring the child free for adoption. The Court appointed a Guardian Ad litem JMM.

12. The Guardian Ad Litem, JMM was present in Court and presented a report dated 2nd May 2023. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She recommends that the Applicants be allowed to adopt the Baby. The child was present in court.

13. An officer of the Department of Children Services, Winfred Ikinya was present in court and presented a report dated 11th May 2023 prepared by Ezekiel Kimani and countersigned by Mary Atati. The report establishes the child is about 1- year –old having been born on 24th February 2022. An OB extract number 13/26/02/2022 from Kiutine Police Post indicates that the child was found abandoned by a Good Samaritan at {Particulars Witheld} village within the larger Nyambane area of Meru County. Upon rescue, the child was taken to Nyambane Hospital for medical care and upon discharge, he was placed at Neema House Infant Rescue Centre in Nanyuki for further care and protection.

14. Maua Children Court then committed the child under the care of that CCI through protection and case number E022 of 2022 for a period of 1 year. The final letter from Kiutune Post is dated 16th September 2022 and indicates that none of the child’s relative was found during their investigations and the child is totally abandoned. Finally, the child was placed under the foster care of the applicants on 24th September 2022 pending adoption.

15. The proposed Legal Guardians CMS and ENN attended court and confirmed he is willing to take up the role of legal guardian. He is the son of the applicants.

16. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.The Court may make an adoption order on application(1)by-a.A sole applicant; orb.Two spouses jointly.(2)The Court shall not make an adoption order in any case unless—a.The applicant has attained the age of twenty-five years, but is not above the age of sixty-five years: andb.The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

17. The Applicants are aged 42 years and 37 years respectively.

18. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child

19. This principle is restated Under section 8 of the Children Act, 2022 which providesBest interests of the child.In all actions concerning children, whether undertaken(1 )by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies—(a)the best interests of the child shall be the primary consideration;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is madethe order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

20. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated March 28, 2023 and order as follows:I.The Applicants SMS and ENM be allowed to adopt BABY LM.II.The Child is to be known as SLSM.III.The Child be presumed to be a Kenyan citizen by birth born February 26, 2022, Murera, Igembe Central.IV.CMS and ENM are hereby appointed as legal guardians of the Child.V.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VI.The Director of Immigration is authorized to issue the child with a Kenyan passportVII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 10TH DAY OF NOVEMBER, 2023. P NYAUNDIJUDGE