[2022] KEHC 12151 (KLR)

In re AG (Child) (Adoption Cause E083 of 2021) [2022] KEHC 12151 (KLR) (Family) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12151 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E083 of 2021

MA Odero, J

May 13, 2022

IN THE MATTER OF THE CHILDREN ACT, 2001 AND IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF AG ALIAS AGI ALIAS UNKNOWN FEMALE BABY – THE CHILD

In the matter of

KSKN

1st Applicant

BSM

2nd Applicant

Judgment

1. Before this court is the Originating Summons dated 9th July, 2021 by which the applicants KSKN and BSM seek the following orders:-“1. Spent

2. Spent

3. That the Applicants be authorized to adopt AG AliasAGI AliasUnknown Female Babyto be known as DWK

4. That the child be presumed a Kenyan Citizen by birth

5. That the child’s date of birth be 1st July, 2017 and place of birth be Kabete.

6. That the Registrar General be directed to enter the adoption in the Adopted Children Register.

7. That the Director Immigration be authorized to issue the child with a Kenyan Passport

8. That SKM and ENN be appointed as Legal Guardians of the child, in the event of the death or incapacity of the Applicants before the child is of age or independent.

9. That the court be pleased to make further orders as it deems necessary”.

2. The Summons was supported by the statement of even date sworn by the two applicants. The matter was canvassed by way of viva voce evidence on the online platform.

3. The Applicants herein KSKN and BSM , are a couple who got married to each other in the year 2017. The couple has one child – a 15 year old boy child named SN, the birth certificate serial number [articulars Withheld] is annexed at page 28 of the Summons. The Applicants now wish to adopt a five (5) year old baby girl. It is their wish to give a needy child a home and extend their family. The Applicants both confirmed that they understood and accepted the legal implications of an adoption order and undertook to accord the subject child all rights due to a biological child including the right to inherit. They confirmed that their extended family were all aware of and supported the couple’s intention to adopt the child.

4. PW4 Lucy Jepchumba Kimaru was the Guardian Ad Litem. She produced in court her report recommending the adoption.

5. PW5 Caroline Olilo from the Directorate of Children’s Services Nairobi County produced their report dated 15th March, 2022.

Analysis And Determination 6. I have carefully considered this application for adoption the various Affidavits and Reports on record as well as the relevant law. I have also considered the evidence adduced in open court. The preliminary requirements for the making of an Adoption Order are set out in section 156(1) of the Children’s Act 2001 which provides as follows:-“159 (1)No arrangement shall be commenced for the adoption of a child unless the child is at least six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.”

7. The subject child was born on 1st July, 2017. The child is now about four and half (4 ½) years old well above the six (6) weeks age limit provided for in law.

8. At page 20 of the Summons is a copy of a certificate declaring the child free for adoption, serial number 00252 by Change Trust adoption Agency which is a registered adoption Agency. Accordingly, I am satisfied that all the legal pre-requisites for an adoption order have been met.

9. The duty of this court is to analyze the material placed before it and make a determination as to whether the Applicants are suitable adoptive parents. The Applicants are both Kenyan citizens. Annexed at pages 25 and 26 of the Summons are copies of their national identity cards. The couple got married under customary law in the year 2003 and solemnized their vows on 9th June, 2017 at Registrar’s Office in Nairobi as evidenced by the copy of their Marriage Certificate Serial No.[particulars withheld] annexed at page 27 of the Summons.

10. The Applicants are engaged in gainful self-employment. They run a car electrical repair shop known as [particulars withheld] Repairs. They have attached their Mpesa statement from pages 29 to 56 of the Summons showing how they earn their income. Apart from the business, the couple also have has rental houses which generate income. The monthly income from the business and the monthly rental income is said to be Kshs. 125,000/-. They also have a piece of land in Naivasha and own three cars and they hope to expand their business to increase their income. I am satisfied that the Applicants are financially secure.

11. The Applicants were both examined and found to be physically and mentally fit. Annexed to the summons at pages 59 to 61 are copies of their medical reports signed by a Dr. Seth. The Applicants have also annexed copies of their Certificates of Good Conduct issued by the Kenya Police Service at pages 62 to 63 which prove that neither has any criminal antecedents.

12. The Applicants told court that their respective families are aware of and support their intention to adopt the subject child. That the child has been welcomed and is fully embraced by the family. Indeed the Applicants have appointed the 2nd Applicant’s brother SKM and his wife ENNas Legal Guardians of the child. The said SKM and ENN have both signed a consent dated 9th July 2021. The letters of consent, the guardians’ copies of Identity cards and an Affidavit of Marriage are annexed from pages 71 to 76 of the Summons.

13. As stated earlier the child is a girl child who was born on or about 1st July, 2017. The child was abandoned aged two (2) weeks old near Vetlabs Staff quarters in Kabete on 15th July 2017. A Good Samaritan one Albert Obi rescued the child and reported the matter at Kabete Police Station vide OB Number 12 of 15/07/2017. The OCS Kabete placed the child at the House of Charity Children’s Home on 17th July, 2017. Subsequently the Westlands Sub-County children’s office recommended committal of the child at the same home for three (3) years. Thereafter Nairobi Children’s Court committed the child to the House of Charity Children’s Home on 21st March 2018. On 21st May, 2018 the child was released into the custody of the Applicants under a Foster Care Agreement.

14. Following the abandonment of the child, efforts by the police to trace the biological parents and relatives of the child have borne no fruit. Similarly no person has come forward to claim the child. The final police letter dated 22nd March, 2018 is annexed to the Summons at page 19.

15. Given that this child was abandoned by her biological mother there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances I dispense with the requirement for consent in line with Section 159(1)(e) of the Children’s Act.

16. Article 14 of the Constitution of Kenya 2010 deals with issue of Citizenship. Article 14(4)provides as follows:“(4)A child found in Kenya who is, or appears to be less than eight years of age and whose nationality and parents are not known, is presumed to be a citizen by birth.”

17. The subject child was abandoned at birth in Kabete which is in Nairobi County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth and I so declare.

18. In deciding upon any matter involving a child Courts are obliged to give priority to the best interests of the said child. Section 4(2) of the Children Act2001provides:-“(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (own emphasis)

19. Following her abandonment the subject child was committed to The House of Charity Children’s Home for care and protection. On 21st May, 2018 she was placed into the custody of the Applicants under a Foster Care Agreement. The child has lived with the Applicants in their family home since she was about ten (10) months old upto the present date. I have no doubt that the child has bonded with the Applicants and considers them to be his parents. I was able to see the child online; she was happy and cheerful, and was obviously very comfortable in the company of the two Applicants. The Child who was very articulate told the court that her name was DWK, and she was 5 years old. She stated that she goes to school and that her friend is Alicia and named her best teacher as Teacher Carole. She stated she was there with her family. The child appeared healthy happy and comfortable seated between the Applicants.

20. A home visit was conducted on 15th March 2022, the Applicants were found to be residing in their own three-bedroomed bungalow house at Riruta Satelite. The home was found to be well secured with a perimeter wall and it is very clean therefore providing a conducive environment for the child to grow. I have perused the reports prepared by the Director Children Services, the Guardian Ad Litem and the Adoption Agency. All are positive and recommend the adoption.

21. This is a child who having been abandoned at birth faced an uncertain future in Children Homes and Institutions. This adoption provides the child the opportunity to be raised in a stable and loving home environment. All in all I am satisfied the adoption will serve the best interest of the child. Accordingly I allow this application and make the following orders:-i.The Applicants KSKN and BSM are authorized to adopt the child known as AG Alias AGI Alias Unknown Female Babyii.Upon adoption the child will be known as DWKiii.The child is declared Kenyan Citizen by birth and entitled to all the rights and benefits in respect thereof.iv.The Registrar General is directed to make appropriate entries in the Adopted Children’s Register

v.That the Director Immigration is directed to issue the child with a Kenyan Passportvi.SKM and ENN are appointed as Legal Guardians of the child.It is so ordered.

Dated in Nairobi this 13th day of May 2022…………………………………………………MAUREEN A. ODEROJUDGEADOPTION CAUSE NO E083 OF 2021 JUDGEMENT Page 3