[2023] KEHC 25753 (KLR)

In re baby AN aka JI (Adoption Cause E027 of 2023) [2023] KEHC 25753 (KLR) (Family) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25753 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E027 of 2023

PM Nyaundi, J

November 17, 2023

IN THE MATTER OF THE CHILDREN’S ACT, 2022 IN THE MATTER OF ADOPTION OF AN AKA JI AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY CBMW (THE APPLICANT)

In the matter of

CBMW

Applicant

Judgment

1. The Applicant, CBMW vide Originating Summons dated 3rd March 2023 has made an application for the adoption of Baby AN aka JI the child herein. The applicant is not married. She does not have children of her own. She has always wanted to be a mother and when she didn’t get married, she finally thought of adoption as an alternative of having children.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 17th and 26th of October 2023.

3. The Applicant is Kenyan Citizen and of the Christian faith. She avers that she has the financial means and capability to take care of the Child. The applicant is self-employed. She has had custody of the child since 2th August 2022. She resides in Kinoo. She fully understands the consequences of an adoption order.

4. The child was born on 1st December 2020. The child was found abandoned in a tea farm in Cheptenye, Waldai Location on 1st March by a good Samaritan, SC of mobile number [particulars withheld] and a resident of Cheptenye village who rescued the minor estimated to be 3 to 4 months old. The matter was reported at Sosiot Police Station and recorded vide Occurrence Book No [particulars withheld]/2021 and was referred to Kericho County Referral Hospital for medical examination where she was admitted on the same day.

5. The Kericho West Sub-County Children’s Officer was involved and sought a vacancy for the minor at Africa Gospel Church Baby Centre - Nakuru and a vacancy was availed. The Children’s Court at Kericho on 9th March 2021 committed the minor to the said home for a period of three years vide protection and care case number E1182/21.

6. The Sosiot Police Station in their later dated 5th March 2022 confirmed that no one went to their offices to claim the abandoned child and their efforts to trace the minor’s kindred proved futile. SC, the Good Samaritan of Tel.No [particulars withheld] was contacted on 8th April 2022 in order to give the current status of the matter and confirmed to have rescued the minor and has never heard anything since then.

7. Prior to the hearing of the adoption application, KKPI Adoption Society prepared and filed a report dated 20th April 2023 and issued a certificate serial No. [particulars withheld] declaring the child free for adoption. The Court appointed Guardian ad litem EMO.

8. EMO the Guadian ad litem was present in court, presented her report dated 16th June 2023. She confirmed to the court that she had visited the applicant’s home. The child was well taken care of and the applicant bonded well with the child. She recommends the adoption. The child was present in court.

9. An officer of the Department of Children Services, Damaris Kobonah attended court and prepared a report dated 9th June 2023. The report was countersigned by Nancy Waswa. The report established that child is estimated to have been born on 1st December 2020. She was found abandoned on 1st March 2021 in Tea plantation by a Good Samaritan who is the owner of the firm known as SC of mobile No [particulars withheld] and resident of Cheptenye Village when she was aged around 3-4 months old. The matter was reported at Sosiot Police Station vide OB No [particulars withheld]/2021 and later the child was taken to Kericho District Referral Hospital.

10. The child was later admitted at AGC Baby Centre, Nakuru pending Committal. The child was committed for P&C under Certificate No. [particulars withheld]. The final police letter was written on 5th March 2022 stating that since the child was abandoned no one has ever gone to claim her as his/her child and efforts to trace her family has been futile. The child was declared free for adoption by KCH after a case committee was held on 20th April 2022 vide certificate No.[particulars withheld]. The child was placed with the applicant after a care agreement was signed on 2nd August 2022 and since then the child has been in the care of the applicant and she is in good condition.

11. The proposed Legal Guardian CAO attended court and confirmed she is willing to take up the role of legal guardian. The applicant is her Aunt.

12. The child was also present in Court and the Court was able to observe that the Child interacted freely with the Applicant. The Child was too young to interviewAfter carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.(1)The court may make an adoption order on application by-(a)Sole applicant; or(b)Two spouses jointly.(2)The court shall not make an adoption order in any case unless-(a).the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and(b)The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

13. The Applicant is aged 51 years.Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child.

14. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child.(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of the law, administrative authorities, or legislative bodies-(a)The best interests of the child shall be the primary consideration;(b)The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is madeThe order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

15. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants.

16. Accordingly, I allow the prayers sought in the Originating Summons dated 3rd March 2023 and order as follows:I.The Applicant CBMW be allowed to adopt Baby AN AKA JIW.II.The Child is to be known as AN.III.The Child be presumed to be a Kenyan citizen by birth born on the 1st December 2020 at Kericho County.IV.CAO is hereby appointed as legal guardians of ChildV.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VI.The Director Immigration is authorized to issue the child with a Kenyan passport.VII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 17TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Sylvia Court Assistant