[2022] KEHC 12044 (KLR)

In re Baby AZ (Baby) (Adoption Cause E111 of 2021) [2022] KEHC 12044 (KLR) (Family) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12044 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E111 of 2021

MA Odero, J

May 6, 2022

In the matter of

BMM

1st Applicant

AAO

2nd Applicant

Judgment

1. Before this court is the ex parte Originating Summons dated August 17, 2021 by which the Applicants seek the following orders:-“1. That the Applicants, BMM and AAO, be allowed to adopt the child currently identified as Baby AZ.2. That henceforth the child be renamed as EEM.3. That the child’s date of and place of birth be declared to be April 21, 2020at Mlolongo, Machakos County.4. That the child be presumed to be a Kenyan Citizen by birth; and consequently entitled to all the rights and benefits in respect thereof.5. That consent of the child’s biological parent’s guardians be dispensed with.6. That VAO be appointed as the Legal Guardian of the child, in the event that the Applicants herein are incapacitated or in any way unable to discharge their parental obligations.7. That the guardian ad litem be discharged.8. That the Registrar General be directed to make the appropriate entries in the Adopted Children’s Register. 9. That this court do issue such further orders as are in the interest of justice”.

2. The summons was supported by the statement of even date sworn by the two applicants. The matter was canvassed by way of oral evidence in open court.

3. The applicants BMM and AAO are a couple who got married to each other in May 2011. To date their marriage has not been blessed with any issue. The Applicants now wish to adopt a child in order to fulfil their desire for a family and motivated by the desire to provide a needy child with a stable home.

4. The Applicants both confirm that they fully understand the legal implications of an adoption order. They both undertake to accord the subject child all the rights due to a biological child including the right to inherit.

5. The prerequisites for an adoption are set out in section 156(1) of the Children’s Act 2001 which provides as follows: -“159(1) No arrangement shall be commenced for the adoption of a child unless the child is at least (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.”

6. The subject child was born or about April 21, 2020. She is now aged approximately two (2) years old and above the six (6) week age limit provided for in the law. Buckner Kenya Adoption Services a registered Adoption Agency have annexed to their Report filed in court on January 25, 2022 the original copy of their Certificate Serial Number 0386 declaring the child Free for Adoption. Accordingly, I am satisfied that all the legal prerequisites for an adoption order have been met.

7. The duty of this court is to analyze the evidence on record to determine whether the Applicants are suitable adoptive parents. The applicants are both Kenyan Citizens as evidenced by the copies of their National Identity Cards which have been annexed to the summons (Annextures ‘BM3A’ and ‘BM3B’).

8. As stated earlier the applicants are a couple who solemnized their union on May 20, 2011at the Nairobi Pentecostal Church. Annexed to the summons is a copy of their marriage Certificate serial Number 583662 (Annexutre BM’5’).

9. The applicants are both in stable employment. The 1st applicant runs a marketing business known as xxxx whilst the 2nd applicant works as a xxxx. Together they realize a monthly income of about Kshs 100,000, which is more than sufficient to provide for the needs of a growing child. Additionally the couple owns land in Kitengela and Nakuru. They have annexed copies of their payslips (Annexture ‘BM7B’) as well as copies of their Bank Statement from Unitas and Standard Chartered Bank (Annexture 7). I am satisfied that the applicants are financially stable.

10. The applicants have testified that they desire to adopt the subject child is based on their wish to be parents and to provide a needy child with a home. The couple informed the court that their respective families are aware of and support their intention to adopt a child. Indeed, they have appointed as legal guardian for the child, the sister of the 2nd applicant VAO. The said legal Guardian has sworn Affidavit dated August 29, 2021 (Annexture ‘BM13’) confirming her availability and willingness to act as legal Guardian for the child. The legal Guardian has also signed the letter of consent dated 15th October 2020.

11. The Applicants are both Christians and intend to raise the child in the Christian faith. They are both worshippers at the [Particulars withheld] Ministries. Annexture ‘BM4’ is a recommendation letter dated 15th October 2020 written by Rev Justus MugambI, a Senior Pastor at Citam Valley Road, Nairobi.

12. The applicants were both examined by a Doctor and found to be in good physical and mental condition. They have each annexed copies of clearance certificates issued by the Directorate of Criminal Investigations confirming that neither has a criminal record (Annexture ‘BM10A’ and ‘BM10B’). Based on the forgoing I am satisfied that the two Applicants are suitable adoptive parents.

5. The subject child is a girl-child who is believed to have been born on or about April 21, 2020. The child was found abandoned aged five (5) weeks in the Mlolongo Area near Masai Shop on 28th May 2020. At the time of rescue the child was hungry, dirty, was suffering from diarrhea, had rashes on the body and had an infection. The abandonment was reported at Mlolongo Police station vide OB No. 9 of May 28, 2020.

15. Upon rescue Mavoko Children’s court committed the child to Mahali Pa Maisha infant rescue center where the child was put on treatment and given proper feeding. Thereafter the child was placed into the custody of theapplicants under a Foster Care Arrangement.

16. From the facts above it is clear that this child had been abandoned by her biological mother/parents who were unable and/or unwilling to care for her. Police efforts to trace the Childs parents have not born any fruit. For the six (6) months the child was admitted in the Childrens Home no person came forward to claim the child. A final Police letter dated 3rd November 2020 (Annexture ‘BM23’) confirms that the parents/relatives of the child have not been traced. Given the fact of her abandonment there exists no person from whom consent for this adoption can be sought and obtained I do hereby waive the requirement for consent in line with section 158 of the Children Act, 2001.

17. “Article 14 of the Constitution of Kenya, 2010 deals with the question of Citizenship. Article 14(4) provides as follows: -“(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”.

18. The subject child was found abandoned at age five (5) weeks in Mlolongo within the Republic of Kenya. I therefore declare her to be a Kenyan Citizen by birth.

19. 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 provides:-“(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”. (Own emphasis)

19. The subject-child was abandoned shortly after her birth. She faced an uncertain future living in Childrens Homes and other similar institutions. This adoption allows the child the opportunity to be raised in a loving and stable home environment.

20. A home visit was conducted on December 15, 2021. The applicants reside in a spacious three bedroomed Apartment at NHC Langata. The area has a playing filed and is well secured by a perimeter fence with 24 hours guards. The applicants have employed a nanny to help them care for the child.

21. I was able to see the child online. She was a cheerful heathy toddler who was comfortable and at ease with the applicants. The child obviously views the applicants as her parents. Indeed the child has lived with the applicants for over a year. This is the only family she knows. I have also perused the reports prepared by the Guardian Ad Litem, the Adoption Agency and the Director Childrens Services. All were positive and recommended the adoption.

22. It is therefore my considered opinion that this adoption serves the best interest of the child. Accordingly, I do allow this application and make the following orders:-

(1)The Applicants BMM and AAO are authorized to adopt the child known as Baby AZ.(2)Upon adoption the child will be known as EEM(3)The child’s date and place of birth is declared to be April 21, 2020 at Mlolongo, Machakos County.(4)The child is declared to be a Kenyan by birth and is entitled to all the rights and benefits in respect thereof.(5)The Registrar-General is directed to make the relevant entry in the Adopted Children’s Register.(6)VAO is appointed as the legal Guardian for the child.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. …………………………MAUREEN A. ODEROJUDGE