[2023] KEHC 26169 (KLR)

In re Baby A (Child) (Adoption Cause 21 of 2020) [2023] KEHC 26169 (KLR) (Family) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26169 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause 21 of 2020

MA Odero, J

December 1, 2023

IN THE MATTER OF CHILDREN’S ACT NO 29 OF 2022 AND IN THE MATTER OF ADOPTION OF BABY A (THE CHILD)

In the matter of

SNM

Applicant

Judgment

1. Before this court is Originating Summons dated 18th February 2020 by which the Applicant seeks the following orders: -“(1)Pursuant to Article 14 (4) of the Constitution of Kenya 2010 and Section 11 of the Children’s Act2010, this Honourable court be pleased to declare that the child is a Kenyan citizen by birth.(2)Pursuant to the provisions of Section 159 of the childrens Act 2001, This Honourable court be pleased to dispense with the requirements of consent to the adoption as required by the Provisions of section 158 of the Children Act, 2001. (3)The Applicant SNM, be authorized to adopt Baby A (the child).(4)Upon the Making of the Adoption order the child be known as PTW.(5)Upon the making of the adoption order, SLGM be appointed as the legal Guardian of the child as provided for by the provisions of section 164 of the Children Act 2001. (6)Upon the making of the Adoption Order the Registrar General do make an entry recording the adoption and the estimated date of the child as 28th APRIL 2018 in the Adopted Children Register as provides for by section 170 of the Children’s Act 2001. (7)The costs of the Application be in the cause.”

2. The application was supported by the statement of even date sworn by the Applicant. The matter was canvassed by way of viva voce evidence before court.

3. The Applicant SNM is a sole applicant who has never been married. Due to medical issues the Applicant has been unable to have a child of her own. She now wishes to expand her family by adopting the Subject child.

4. The Applicant confirms that she understands and accepts the legal implications of an adoption order. She undertakes to accord to the Subject child all the rights due to a biological child including the right to inherit.

Analysis and Determination 5. I have considered the application for adoption, the evidence adduced in support thereof as well as the various reports filed in court.

6. The prerequisites for adoption order are set out in section 184 (1) (a) and (b) of the Children’s Act2022: -“(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.”

7. The Subject child was born on or about 28th April 2018. Thus the child is now aged five (5) years old and is above the six (6) week age limit provided for in law.

8. Little Angels Network, which is a registered Adoption Agency have annexed to their report a copy of their Certificate Serial Number [particulars witheld] dated 10th December 2018 declaring the child Free for Adoption. I am therefore satisfied that all the legal prerequisites for an adoption order have been met.

9. The duty of this court is to analyze the evidence on record to determine whether the Applicant is a suitable adoptive parent. The Applicant is a Kenyan citizen as evidenced by the Annexed copy of her National Identity Card. (Annexture ‘C’).

10. The Applicant has never been married and has no biological child. She told the court that the doctor confirmed her inability to conceive and she made the decision to grow her family through adoption. She now wishes to adopt a child.

11. The Applicant is self-employed. She runs a cosmetic shop in Juja farm. She gets an income which is sufficient to enable her provide for the needs of the child. All in all, I am satisfied that the Applicant is financially secure.

12. The Applicant is a Christian and intends to raise the child in the Christian faith. The Applicant was examined by a doctor and was found to be mentally and physically fit. She has annexed to the summons a copy of her Clearance Certificate issued by the Directorate of Criminal Investigations confirming that she has no criminal record (Annexture ‘SN-5’.)

13. The Applicant told the court that her family is aware of and support her intention to adopt the Subject child. She has appointed her mother as the legal Guardian for the child. The proposed legal guardian SLGM has signed a consent dated 18th February 2020 confirming her willingness to act as the legal Guardian for the child in the event of the death and/or incapacity of the Applicant.

14. Based on the material presented before this court I am satisfied that the Applicant is a suitable adoptive parent.

15. The Subject child who was born on 28th April 2018 was found abandoned aged barely three (3) weeks old on 19th May 2018 at an Express clinic in Kangemi area of Nairobi County. The nurses rescued the child and reported the abandonment at Kabete Police Station vide OB Number [particulars witheld]. The child was admitted to Nest children’s Home and was later committed by the Nairobi Senior Resident Magistrate Childrens Court to the same home as a child in need of care and Protection. On 29th September 2019 the child was released into the custody of the Applicant under a Foster Care Agreement.

16. Article 14 (4) of the Constitution of Kenya 2010 provides that: -“(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 found abandoned at the age of three (3) weeks within Nairobi County in the Republic of Kenya. Efforts by police to trace the biological mother and/or relatives of the child have borne no fruit. To date no person has come forward to claim the child. A final police letter dated 22nd November 2018 confirms this fact. I therefore declare the child to be a citizen of Kenya by birth.

18. Given the fact of her abandonment there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances, I do waive the requirement for consent in line with Section 187(1) (a) Children Act 2022.

19. In deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. Section 8 (1) of the Children Act 2022 provides: -“(8). (1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration;” [own emphasis]

20. This is a child who was abandoned shortly after her birth. She faced an uncertain future living in children Homes and other similar institutions. This adoption provides the child with the opportunity to be raised in a stable and loving home environment.

21. The child has been living with the Applicant in her home for close to four (4) years. She has undoubtedly bonded with the Applicant whom she views as her mother. The child knows no other family.

22. A home visit was conducted by the Children’s officer. The applicant lives in a double room house in Embu County and the environment was found to be conducive for the upbringing of the child

23. I have considered the reports prepared by the Adoption Agency, the Guardian Ad Litem and the Director of Children Services. All three reports were positive and all recommend the adoption.

24. In conclusion, I find that this adoption does serve the best interests of the child. Accordingly, I do allow this application and make the following orders:-1)The Applicant SNM is authorized to adopt the child known as BABY A.2)Upon Adoption the child shall be known as PTW.3)The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and privileges pursuant thereto.4)SLGM is appointed as the Legal Guardian of the child.5)The Registrar General is directed to make relevant entry in the Adopted Children Register.

DATED IN NAIROBI THIS 1ST DAY OF DECEMBER, 2023. MAUREEN A. ODEROJUDGE