[2017] KEHC 9706 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

ADOPTION CAUSE NO. 4 OF 2006

IN THE MATTER OF THE CHILDREN ACT 2001

AND

IN THE MATTER OF ADOPTION OF CHILD A.L.J

AND

IN THE MATTER OF AN APPLICATION FOR ADOPTION

BY

P J P G.........................................1ST APPLICANT

S L K K.........................................2ND APPLICANT

RULING

1. The applicants are husband and wife. They filed an application seeking to adopt the minor in question A.L.J. The application was declined by this Court in its judgment of 27th November 2014 in which the court raised the following issues which needed to be sufficiently dealt with before the application for adoption could be granted:

a) the applicants did not have any documents showing that they fostered the child from the Child Welfare Society of Kenya;

b) the applicants did not furnish the Director of Children’s Services with their police records;

c) the 2nd applicant was recovering from alcohol abuse and yet there was no police records to indicate whether she could be trusted with the child; and

d) the 1st applicant did not show that he had been authorised and recommended by a competent government authority or competent court in France as a person who was suitable (including being morally fit and financially capable) to adopt a foreign child.

2. The applicants have now filed summons dated 15th February 2017 seeking orders that this Honourable Court be pleased to review its Judgment declining to grant them adoption orders in respect of the minor and instead does grant them an adoption order in respect to the minor. In the alternative, they pray that this Court does order for fresh hearing of the adoption cause. They also wish that the child be presumed to be Kenyan having been found abandoned in Kasarani/Githurai area within Nairobi County.

3. The application is supported by various affidavits sworn by the applicants in which they state as follows:

a) the applicants have now met the conditions as required by the Court in its judgment of 27th November 2014 and have obtained the following documents:

i. the agreement of foster parent from the Child Welfare Society of Kenya dated 30th September 2003;

ii. a note from Pumwani Maternity Hospital dated 30th March 2006 showing that the minor was abandoned at Kasarani Area as a baby, was brought to the hospital on 19th September 2003 and was discharged to the Child Welfare Society of Kenya on 30th September 2003;

iii. certificate of good conduct from the police for both applicants;

iv. a letter from the 1st applicant’s employee, the United Nations;

v. a letter from the French Embassy in Nairobi; and

vi. a letter from the Child Welfare Society of Kenya;

b) that the need for review of the judgment and grant of the orders sought would be in the best interests of the child;

c) that the applicants desire that the child obtains citizenship of both Kenya and France and therefore wished to apply and register the child as adopted by them to enable her acquire French Citizenship; and

d) that there is a requirement in France requiring the adoptee to be less than 15 years of age, and the child is now approaching 14 years hence the need to move with urgency to complete the adoption process both in Kenya and France.

4. I have looked at all the affidavits and the documents filed by the applicants in support of their application. The applicants have filed a letter from Kasarani Police Station dated 2nd June 2006 stating that the minor was found abandoned at Githurai 44 near Provider Medical Centre on the morning of 19th September 2003 by one Chief Inspector Lazarus Opicho of AP Camp Githurai 44, and that the officer took the helpless infant to Pumwani Maternity Hospital for maternal care. The letter further stated that there is no one who has come to claim the minor. A note from Pumwani Maternity Hospital dated 30th March 2006 was also filed by the applicants stating that the minor was abandoned within Kasarani Area as a baby, brought to the hospital on 19th September 2003 and discharged to the Child Welfare Society of Kenya on 30th September 2003. An undated agreement for foster parent between the applicants and the Child Welfare Society of Kenya was also filed in which the applicants confirmed to have received the minor into their custody on 30th September 2003. All these documents were provided to show how and where the child was rescued from and how the applicants fostered the child from the Child Welfare Society of Kenya.

5. On the second concern raised about the applicants having not furnished the Director of Children’s Services with their police records, the applicants have now obtained and filed in court certificates of good conduct from the police confirming that they were both searched in Criminal Records Office’s database and that there was no criminal record against them. There Director of Children Services report dated 20th April 2012 indicated that the 2nd applicant has satisfactorily addressed the areas of concern raised in their first report.

6. Lastly, to confirm his nationality status, the 1st applicant deponed that he is French Citizen, born in Thonon-Les-Bains, France and holding passport No. […]. He filed a Certificate of Residence dated 9th February 2017 in which the Deputy Consul and Head of Chancellery at the Embassy of France in Nairobi certified that he is recorded in the registry of French Citizens outside France since 7th October 1997.

7. To confirm that he is authorised by the French government as a suitable (including being morally fit and financially capable) to adopt a foreign child, he filed a document dated 5th June 2017 titled “Official Certificate” from the Directorate of French Nationals Abroad and Consular Administration, Department of Intercountry Adoption, which, quoting Article 350-5 of the French Civil Law, confirmed that an adoption regularly pronounced in a foreign court shall have effects of full adoption in France. He further filed a document dated 27th July 2012, titled “Object, Adoption and Expatriation” issued by the French Ministry of Foreign Affairs, Directorate of French Nationals Abroad and Consular Administration, Department of Intercountry Adoption, which confirmed that he did not require approval from the French authorities for an adoption conducted outside France, with the exception of a few named countries of which Kenya is not one.

8. Having fulfilled all the conditions set out by this court in its judgment of 27th November 2014, the following orders shall issue:

a) the applicants P J P G and S L K K are hereby allowed to adopt the minor A.L.J.;

b) the minor A.L.J. shall henceforth be known as A L J;

c) the child’s date of birth shall be 19th September 2003, and shall be presumed Kenyan by birth having been found abandoned at Kasarani/Githurai Area in Kenya;

d) the Registrar-General is directed to enter this adoption in the Adopted Children Register; and

e) the guardian ad litem is hereby discharged.

9. In accordance with section 163(2) (c) and (f) of the Children Act, the Child Welfare Society of Kenya shall supervise the applicants for the next two years and file a report about them at the end of the two years. Further, the French Embassy shall for the next two years provide a report on the applicants every six months. Lastly, pursuant to Section 158(4)(f) of the Children Act, the minor shall immediately file written consent to the making of the adoption order.

DATED and SIGNED at NAIROBI this 7TH day of NOVEMBER 2017

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 9TH day of NOVEMBER 2017

R.E. OUGO

JUDGE