[2022] KEHC 17221 (KLR)

In re Baby A (Minor) (Adoption Cause E139 of 2021) [2022] KEHC 17221 (KLR) (Family) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17221 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E139 of 2021

EKO Ogola, J

December 1, 2022

IN THE MATTER OF THE CHILDREN’S ACT, 2001 AND IN THE MATTER OF THE ADOPTION OF BABY A (MINOR) AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY ACK

Judgment

1. Before this court is the originating summons dated October 26, 2021 by which the applicant ACK seeks the following orders: -a.That the applicant be authorized to adopt Baby A, a minor who is to be known as MNAD and the Registrar General be directed to enter this adoption into the Register of Adoption;b.That LNK be appointed as the legal guardian of the minor;c.That the child be presumed to have been born in Kenya

2. The originating summons was supported by a statement of even date sworn by the applicant. The matter was canvassed by way of viva voce evidence in open court.

3. The Applicant as PW1 testified that Baby A was abandoned at Naivasha-Nairobi Highway, and she was put in her care when she attained 6 months. She added that Baby A has been in her care from the year 2012 to date. She testified that she is employed as a Caterer and therefore, she is able to sufficiently provide for Baby A.

4. PW2 was PME the guardian ad litem. She testified that she visited the applicant three times and compiled a report dated July 1, 2022, recommending the Applicant as a suitable parent.

5. PW3 was JWM. She deposed that she is a Social Worker employed by Kenyan’s to Kenyan’s Peace Initiative (KKPI) Adoption Society. She testified that the Applicant approached the Society seeking to adopt a child. She testified that the Society assisted and since then, the Applicant has taken good care of Baby A. Lastly, she testified that on October 31, 2012, the Society declared Baby A free for Adoption.

6. PW4 was Caroline Olilo a Children’s Officer. She testified that she assessed the applicant and further compiled and filed a report dated July 27, 2022 recommending the Applicant as an adoptive parent.

Determination 7. I have considered the Summons before me, the evidence on record as well as the various reports filed in court.

8. The child is presumed to have been born on January 14, 2012. She was abandoned in a matatu along Naivasha-Nairobi Highway on January 31, 2012 and she was fortunately rescued by a good Samaritan one Vivian Nyawira Wainaina who reported the matter at AP Post Rironi under OB No 13/3/RIR/AP. On the same day, the child was placed at Angel Centre for Abandoned Children and further committed to the Children’s home by Limuru Senior Magistrate. The final police letter dated August 3, 2012 from Rironi AP Post indicated that the child had remained unclaimed and the efforts to trace the child’s kin were futile. The child was subsequently declared free for adoption. The child was then placed in the care of the Applicant on October 7, 2012.

9. The prerequisites for adoption are set out in section 156(1) of the Children Act, 2001 which stipulates 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.”

10. At the time when this adoption process commenced, Baby A was almost ten years of age which is above the six (6) week age limit provided for by law. The Kenya KKPI Adoption Society which is a registered Adoption Agency has annexed to their report a certificate declaring the child Free for Adoption. I am therefore satisfied that the legal prerequisites for an adoption order have been met.

11. The duty of this court is to analyze the material before it to determine whether the Applicant is a suitable adoptive parent. The Applicant is a Kenyan citizen as evidenced by the copy of her National Identify Card. She is a committed Christian and intends to raise the child in the Christian Faith. ACK worships at the Divine Mercy Parish Kariobangi South. She is also gainfully employed and can therefore sufficiently provide for Baby A. The Applicant has annexed to the Summons copies of her Mpesa statements as proof of her financial capability. The Applicant has also annexed copies of her Clearance Certificate issued by the Kenya Police Service as proof that she has no criminal record.

12. The applicant has appointed LNK a teacher at Butali Primary school, to be Baby A’s legal guardianin the event where the Applicant will be unable or unavailable to provide for the child.

13. Finally, the Applicant told the Court that her larger family is supportive of her intention to adopt Baby A. From the material availed to this Court I am satisfied that the Applicant is a suitable adoptive parent.

14. The subject child was abandoned when she was 2 weeks old. Article 14 of the Constitution deals with the question of Citizenship. Article 14(4) 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.”

15. I, therefore, declare Baby A, a citizen of Kenya by birth.

16. Furthermore, in deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 4(2) of the Children Act 2001 stipulates as follows:-“(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”

17. Baby A was abandoned 2 weeks after she was born, and she faced an uncertain life. This adoption allows her the opportunity to be raised in a stable and loving home environment.

18. A home visit was conducted by the Children's officer. The Applicant was reported to be living in a bedroomed rental apartment where she is also raising her niece who is a minor.

19. I have considered the reports filed by the Adoption Society, the guardian ad litem, and the Children’s Services. All were positive and all recommended the adoption. There are pictures of the child on record and she seems like a healthy and cheerful child.

20. All in all, I find that this adoption does serve the best interests of the child. Accordingly, I do allow the Originating Summons dated October 26, 2021 and make the following orders:-a.The Applicant, ACK is authorized to adopt the child known as Baby A.b.Upon adoption the child shall be known as MNAD.c.The child is declared to be a Kenyan Citizen by birth and is entitled to all rights and benefits under the Constitution of Kenya and all applicable laws.d.The guardian ad litem, PME, is hereby discharged.e.LNK is hereby appointed as the legal guardian of the child.f.The Registrar General is directed to make the relevant entry in the Adopted Children Register.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 1ST DAY OF DECEMBER 2022. E.K. OGOLAJUDGEIn the presence of:Ms. Ambaka for the ApplicantGisiele Muthoni Court Assistant.E.K. OGOLA J. Page 3 of 3