[2019] KEHC 9795 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

ADOPTION CAUSE NUMBER 5 OF 2018

IN THE MATTER OF BABY AM a.k.a. SMN.....................................................INFANT

AND

HNK........................................................................................................... APPLICANT

JUDGMENT

The application is brought by way of Originating Summons dated 22nd May, 2018. The applicant HNKthrough her advocates, Nancy Njoroge, Kairu & Company Advocates seek the following orders:

1. Spent.

2. Spent

3. Spent.

4. THATthe applicant be authorized to adopt baby AM A.K.A SMN and the child be called the same henceforth.

5. THATbaby AM A.K.A SMN be presumed to be a Kenyan citizen by birth.

6. THATthe Registrar General do make the appropriate entries in the adopted children’s register in respect of baby AM A.K.A SMN.

7. THATthe court does issue such other order as may be necessary in the best interest of the child.

8. THATthe costs be in the cause.

The applicant HNKresides at Muchorwe within Molo Sub-County. She is a business lady and also she does farming.

She has never been married though she has had relationships before. She has never had children due to health complications. She thus desires to parent through adoption in order to have a family and continue to provide for a minor placed under her care.

BabyAM a.k.a. SMN was presumably born on 2nd September 2014 in Naivasha Karagita area. He was thrown into a pit latrine by his mother and was rescued by unnamed persons and taken to Naivasha District Hospital on 7th September 2014. He was admitted at the newborn unit and was discharged on 17th September 2014 and returned to his mother who was known.

His mother one TW did not want to keep him so she gave him up to Africa Gospel Church Baby Center on 23rd September 2014. The mother never gave formal consent as required by law. The case was reported at Nakuru Police Station as abandonment.A statement by TW dated 23rd September 2014 is available.

The matter was recorded at Nakuru Police Station vide Occurrence Book Number [paticulars withheld].

Information available indicates that the child is in good health and that the home ensured that the child’s immunization schedule was followed as per the Kenya Expanded Programme Guidelines on immunizations. His HIV test result is negative.

The minor was officially committed to Africa Gospel Church Baby Centre for care and protection at the Molo Children’s Court on 14th January 2015 vide Protection and Care Case Number 7/15 for a period of three years.

The Nakuru Police Station vide a letter dated 24th June, 2015 asserted that no one went to the station to claim for the abandoned child and their efforts to trace the kindred of the child have been futile.

HNKapproached the Kenya Children’s Home Adoption Society on 19th September, 2016 with an intention of being ratified for placement with a male child with a view of eventually adopting. She was taken through the adoption process and its implications. An interview session and a home study was conducted by the society’s personnel at her Muchorwe Molo residence on 30th Janurary, 2017. The applicant was approved to be a suitable potential adoptive parent by the society’s case committee sitting of 15th February, 2017. Baby AM a.k.a. SMN was freed by the society’s case committee on its sitting on 19th July, 2017 and a Certificate of Declaring a Child Free for Adoption serial number 1367 was issued pursuant to Section 156 (1) of the Children’s Act 2001. HNKwas placed with baby AM a.k.a. SMNon 8th September, 2017.

On 17th October, 2018 the Court appointed SNM of P.O. Box 725 Molo as Guardian ad Litem of AM a.k.a. SMN. The Director of Children’s Services in the Ministry of Labour and Social Protection was directed to conduct investigations as to the suitability of the applicant to adopt baby AM a.k.a. SMN.The consent of the biological parents of baby SM a.k.a. SRKwas dispensed with.

Maureen Omondi, a personnel from the children’s department conducted an interview on the applicant and later she together with another personnel named Agatha Omukanga made a home visit on 11th January, 2019 at her residence in Muchorwe Molo to further interrogate her on her suitability to adopt baby AM a.k.a. SMN. Mr. Edwin N. Njagi for the County Children’s Coordinator filed a report to court dated 15th January, 2019.

Mr. Njagi of the children coordinator’s office Nakuru is spot on in respect of the law applicable when a sole female applicant wishes to adopt a male child. Section 158 sub-section 2(b) of the Children’s Act provides that a sole female applicant shall not be allowed to adopt a male child.

Courts have held that such an applicant may be allowed to adopt a male child in special circumstances following the guidelines of the National Adoption Committee dated 13/1/2010 pursuant to Section 155 of the Children’s Act for a female applicant wishing to adopt a male child.

The best interest of a child is paramount. I note the child herein has bonded well with the adoptive parent child as evidenced during their appearance in court. The child will benefit from getting a home, comfort, material necessities of life including education and sense of belonging. In the best interest of the child, I find no plausible reason to impede the adoption.

I place reliance on the decision of Onyiego J in Re CKS (minor) [2018] eKLR and an earlier decision by Achode J Re Adoption of Baby JKM [2017] eKLR.

I am persuaded that in the special circumstances of this case the adoption sought is proper.

I allow the originating summons dated 22/5/2018 and make the following orders;

1. THATthe applicant be and is hereby authorized to adopt baby AM A.K.A SMN and the child be called the same henceforth.

2. THATbaby AM A.K.A SMN be and is hereby presumed to be a Kenyan citizen by birth.

3. THATthe Registrar General do make the appropriate entries in the adopted children’s register in respect of baby AM A.K.A SMN.

DatedandDeliveredatNakuruthis28thday ofFebruary, 2019.

A. K. NDUNG'U

JUDGE