[2022] KEHC 3376 (KLR)

In Re Adoption of Selah Esther aka Malaika Donatella (Baby) (Adoption Cause E029 of 2021) [2022] KEHC 3376 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3376 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E029 of 2021

MW Muigai, J

May 4, 2022

In the matter of

EMK

Applicant

Judgment

1. Through an Application by Originating Summons dated 23rd November and filed on the 24th November, 2021, the Applicant EMK sought the following prayers: that the Applicant be authorized to adopt Baby SE aka MD, the child in this matter, and to be named EAM; that MMM be appointed as the Guardian ad litem in this case; that JMM be appointed as the legal guardian of the child; that the Director of Children’s Department do investigate the case and file a report; that the Director General be directed to make in the adopted Children’s register an entry recording the adoption in accordance with the particulars set out in the schedule attached hereto. On 1/02/2022 JMM appeared in Court as the proposed guardian ad litem Court and was appointed as such for the purposes of this adoption. The Court also ordered the Director Children Services to avail their report within 30 days.

2. The Applicant is an adult of sound mind within the meaning of Kenyan Mental Health Act and she is also of good physical health; she is a civil servant working as a Children Officer in charge at Machakos, M and K. She has one biological daughter named JMM and one adoptive son named Prince TLM.

3. The child subject of these proceedings Baby SE aka MD is presumed to be born in Kenya on 18th May, 2020. It is alleged that she was found abandoned opposite Bariz Restaurant off Gitaka Road near Osopuko estate and the abandonment was reported at Rongai Police station and booked vide OB No. xx/19/05/2xxx. The child was handed over to the Nairobi Women’ Hospital where she was admitted and named as MD. The hospital record indicated that she had sepsis. The Kajiado Sub County Children Officer requested Mahali Pa Maisha Infant Rescue Centre for placement of the baby at the facility for care and protection. She was admitted at the home on the same day 22nd May, 2020 and was named Selah Esther. On 10th July, 2020 the baby was committed to the care and protection of the Mahali Pa Maisha infant Rescue Centre for Care and Protection Case No. x of 2020, at the Ngong Law Courts.

4. On 1st December, 2020, the Ongata Rongai Police Station confirmed that nobody had claimed the child since she was abandoned. The search for parents did not bear any fruits. Mahali Pa Maisha Infant Rescue Centre further reported that during her stay in the institution that no relative had ever turned up to claim the child and neither did they received any information from the Police Department regarding any claimants. According to the Mahali Pa Maisha Centre, the child’s health had been fine. They have verified all the information/documents provided and are satisfied that the information provided relates to the child herein. Baby SE aka MD remained in the care of Mahali Pa Maisha Infant Rescue Centre until 17th June 2021 when she was placed in the care and good nurturing accorded to her by the Applicant. Baby SE has bonded well with the prospect adoptive family.

5. The Guardian ad Litem, MMM who was appointed as the Guardian ad Litem on 1/02/2022 for the purposes of this Adoption told the Court that she had filed an affidavit of fitness and consent dated 23/11/2021. She further stated that she had worked with the Applicant at the Department of Children’s Services and they fellowship and confess the same faith. The Guardian ad Litem fully recommended the Adoption.

6. Bucker Kenya Adoption Services Agency filed their Report dated 31/01/2020 and filed on the same date. The Adoptive parent had approached Buckner Kenya Adoption Services on 14th March, 2021 and it was her 2nd adoption application. The Applicant had successfully completed the 1st Adoption on 1st April, 2019. The Applicant was found eligible and Case Committee sitting on 28th May, 2021 approved her application. The Applicant was placed with Baby SE aka MD from Mahali Pa Maisha Infant Rescue Centre on 17th June 2021. The relevant home visits and follow-ups were done and the final follow up session was conducted on 9th November, 2021 it recommended the Adoption. The Applicant is a Civil servant earning a gross income of Kshs.120,000/-; she is single with one biological daughter and one adoptive son On 30th March, 2022 Ms. PK from the Agency appeared in Court and confirmed that the child subject of these proceedings was rescued by unnamed Good Samaritan. The matter was reported at Rongai Police Station vide OB/xx/19/5/2xxx, the baby taken at Nairobi Women Hospital and later placed at Mahali Pa Maisha Home. The child was later committed to the home by the Ngong Law Courts in the Care and Protection No.4 of 2020. Ongata Rongai Police Station did a Report after 6 months stating that the child was not claimed hence the child was declared free for adoption on 5th February, 2021 vide declaration Certificate is 454 from Buckner Kenya Adoption Services. The Applicant was assessed and found to be a suitable adoptive parent. This is her 2nd Adoption. The Applicant was placed with the child on 17/06/2021 and the Agency conducted follow-up session and found the child has adopted well with the applicant. The Agency recommended the Adoption.

7. The Director of Children Services through a Report dated 11th March 2022 in respect of the proposed adoption of the child by the Applicant was prepared by Ms Sarah Solomon the Sub-County Children’s Officer Mwala. The report contains family and professional background information of the Child’s Adoptive Parent. The Applicant is single with one biological daughter one JMM and one adoptive son (Prince TLM) placed in the care of the Applicant on 19/11/2017 and Adoption finalized in the year 2018 vide an application extended at High Court of Kenya at Machakos. The Applicant is desirous to give a home and love to a needy child and she believes it is the best gift she can give as her service to humanity. The Applicant is economically stable. The Applicant lives in a rented two (2) bedroomed house with a spacious compound for the children to play. The Child subject of these proceedings has bonded well with the Applicant and her elder siblings and enjoys their company. On observation the Applicant has bonded well with the minor and the minor knows the Applicant as her parent and she is attached to her. The Applicant is socially and economically able to take care of the child. They recommended the adoption as the Applicant has fulfilled all the legal requirements for local adoption, she has proved to be capable of taking on parental responsibilities over the child in this matter, she has been found fit, the child in this matter was an abandoned baby and has been declared free for adoption by a registered adoption agency, she is financially stable and hardworking and it is for the minor’s best interest to grow up in a family settings as opposed to an institution.

8. This Court finds that the adoption in question is in the best interest of the child as she will grow up within a family of her own instead of an institution. The Reports by the Director of Children’s Services, the Adoption Agency as well as the testimony of the Guardian ad Litem are in favour of the adoption. The Applicant have fulfilled all the legal requirements necessary for a local adoption and have been proven to be suitable potential adoptive parent.

9. The Applicant herein EMK was assessed and found to be financially stable from her income in employment hence well capable of raising the child. The Applicant is well aware that an order of adoption grants the child inheritance rights to her property and she has no objection to it. The Applicant complied with Section 156 & 158 of Children Act; the child was declared free for adoption and later placed in her custody and they have bonded well as a family.

- Dispositiona.The Applicant, EMK is hereby authorized to adopt the child Baby SE aka MD and the child shall therefore be known as SEAM.b.Date of Birth shall be 18 th May, 2020. c.She is therefore presumed to be a Kenyan citizen by birth.d.The Legal Guardian is JMM.e.The Registrar General is hereby directed to enter this order in the Adoption Register.f.The Guardian ad litem is hereby discharged.

READ AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 4TH DAY OF MAY, 2022. MARGARET W. MUIGAIJUDGE