[2017] KEHC 2367 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 43 OF 2017 (OS)

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001

IN THE MATTER OF ADOPTION OF BABY A N

BY

T N M (APPLICANT)

JUDGMENT

1. The Applicant T N M is a Kenyan citizen. She is single and has no child of her own. She wishes to adopt the child known as Baby A N a minor of the female sex through the Originating Summons dated 1st December, 2016. The Applicant indicates that she is a Researcher at the Kenya Agricultural and Livestock Research Organisation. She resides at Lavington West, Nairobi and she professes the Christian faith.

2. The child who is the subject of these adoption proceedings is said to have been abandoned by her mother immediately after birth, on 20th December, 2008 at Kiambu District Hospital. The matter was reported at Kiambu Police Station and recorded vide OB No. 35/24/12/2008. The child was placed at the Abandoned Baby Centre for protection on 4th March, 2009 for care and protection. On 30th March, 2009 she was officially committed to Child Welfare Society of Kenya on 4th March, 2009 by the Kiambu Children’s Court, vide P&C No. 15 of 2009.

3. The child was declared free for adoption by Child Welfare Society of Kenya on 19th May, 2009 as per Section 156 of the Children Act 2001 as confirmed by certificate serial No.[particulars withheld] She was released into the custody of the Applicant for mandatory foster care pending adoption on 19th May, 2010 upon her signing a Foster Care Agreement dated the same day. Since then she has been in the continuous custody and care of the Applicant.

4. Prior to the hearing of the adoption application, Child Welfare Society of Kenya prepared and filed a report in court declaring the Applicant suitable to adopt. Kiambu Police Station in their letter dated 4th May, 2010 stated that following their investigations the biological parents of the child were not traced, nor did anyone come forward to claim the child.

5. The Adoption Society, guardian ad litem and the Director of Children’s Services have all made home visits and established that the Applicant is financially and emotionally capable of providing for the up keep and education of the child.

6. The Director of Children’s Service’s report dated 1st August, 2017 recommended the adoption, for reasons that the child knows the Applicant as her parent and is attached to her. That she has also bonded well with the Applicant. That the child stands to gain the opportunities provided by becoming the daughter of the Applicant. That if the adoption is granted the child will grow up in a loving home rather than in an institution. The guardian ad litem, M/s. Florence Nyambura Mbugua also filed a report dated 3rd October, 2017 that was favourable and recommended the adoption of the child by the Applicant.

7. The Adoption Society, guardian ad litem and the Director of Children’s Services have all established that the Applicant is financially and emotionally capable to provide for the up keep and education of the child.

8. Of note is that the orders sought by the Applicant relate to a child. In law, in any matter concerning a child, the best interests of the child are paramount. Article 53(2)of theConstitution provides the guiding principle on this question as follows:

“A child’s best interests are of paramount importance in every matter concerning the child.”

9. This principle also finds expression in the Children Act No. 8of 2001 and in particular Section 4(3) thereof. The Applicant’s opportunity or desire to have a child of her own is therefore only of secondary importance.

9. The child appears to have thrived and is healthy and happy under the care of the Applicant. She was in court during the hearing and appeared to have bonded well with the Applicant and clearly considered her as her parent. The court also observed that the Applicant being aged 56 years is older than the child who is now age 9 years by more than 21 years but is not yet above 65 years of age. She therefore meets the requirements of the law on age.

10. After a careful assessment of the reports filed herein and from the observation of the interaction of the Applicant and the child during the hearing, I am satisfied that it is in the best interest of the subject child to be adopted by the Applicant.

11. In the premise I allow the application brought by way of Originating Summons dated 27th March, 2017 and order as follows:

i. The Applicant T N M is hereby allowed to adopt Baby A N who shall henceforth be known as S K M.

ii. Her date of birth is presumed to be 20th October, 2008 and her place of birth shall be Kiambu, in Kenya.

iii. L K G (Applicant’s niece), is hereby appointed the legal guardian of the child in the event that the Applicant dies or is incapacitated by ill-health.

iv. The Registrar General is hereby directed to enter this order in the Adoption Register.

v. The Director of Immigration is hereby authorised to issue the child with a Kenyan passport.

vi. The guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 3rd day of November, 2017.

…………………………………….

L. A. ACHODE

JUDGE

In the presence of ……………………Advocate for the Applicant