[2013] KEHC 6796 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

ADOPTION CAUSE NO. 31 OF 2013 (OS)

AND

IN THE MATTER OF THE CHILDREN’S ACT

(NO. 8 OF 2001)

AND

IN THE MATTER OF BABY C E [MINOR]

JUDGMENT

The applicants, S N and E I E, are a married couple. The male applicant is a Canadian working with the Canadian High Commission in Nairobi, while the female applicant is Kenyan. They are currently resident in Kenya, and therefore this is a resident application. They have filed the Originating Motion dated 7h February 2013 seeking the court’s permission to adopt the Kenyan female child known for the purpose of these proceedings as Baby C E[minor].

Baby C E[minor], the subject of these adoption proceedings is the biological child of the female applicant from an earlier relationship. He was born on 18th March 2008. She previously lived with the father of her son until the relationship soured and the parties separated. She says that she does not know where that man now is. He has never shown any interest in the child. The man was paranoid and violent. He chased her out of their home claiming that the child was not his. The applicants moved in together in December 2010 and formalised marriage in April 2011. The child was declared free for adoption by the Kenya Children’s Homes by their certificate dated 11th October 2012.

To facilitate the adoption the applicants have been assessed by the Kenya Children’s Homes adoption society and by the Director of the Children’s Services. These two have compiled and filed their reports in court dated 21st February 2013 and 14th June 2013, respectively. The guardian ad litem, S K M, has also filed his report dated 8th February 2013. All these reports are favourable and recommend the proposed adoption. The applicants have demonstrated that they have the financial and emotional capability and capacity to take care of the child. The child appears to have bonded well with the male applicant and he considers him to be his father. I note that the applicants have a biological child between them.

The Director of Children Services, although overall is supportive of the application, has raised a number of concerns. The first concerns the consent of the biological father of the child. The second one relates to the duration of the marriage between the applicants. Finally is the issue of citizenship.

The female applicant’s position is that she does not know of the whereabouts of the biological father of the child. The Director of Children Services did not appear to believe that. I am on my part am also unable to believe that she does not genuinely know of the whereabouts of the biological father of her child. They parted ways just three years ago. There are clear honesty and integrity issues here. The female applicant is in my opinion less than honest. She did not make any effort to trace the father of the child once it was indicated that his consent might be necessary for the purpose of the adoption. Were it not for the fact that the adoption process is about the child and not the mother, and that generally this court should act in the best interests of the child, I would have declined to grant the orders. I will grant respite, but only because the applicants have been living together since December 2010, and it would appear that since then the biological father of the child has not showed concern for his son.

On the issue of the very short duration of the marriage of the parties, I take guidance from the decision of B P Kubo J in In Re E O (A Child) (2006) eKLR, where it was held that the duration of the marriage of the applicants does not matter so long as the child sought to be adopted is the biological child of one of the applicants. The facts in that case were similar to those in this case; the parties in that case had been married for 13/4 years.

On citizenship, I am satisfied that a Kenyan adoption would be recognised in Canada and the child the subject of the adoption would be entitled to residency and citizenship. This is by virtue of section 5. 1 of the Citizenship Act of Canada.

In the opinion of this court it would be in the interests of the child that the child is adopted by the applicants. The applicants will be able to provide a home and a family for the child to grow up in and thereafter be a useful member of the family and the society at large.

I am satisfied that all the legal requirements for a resident adoption have been met. I will therefore dispense with the consent of the biological father of the child. The applicants, S N and E I E, are hereby allowed to adopt the child, Baby C E[minor]. His name shall hereafter be C E N[minor]. I also hereby appoint C N and GT legal guardians of the child should anything untoward happen to the applicants. The Registrar-General is directed to enter this adoption order in the adoption register. The guardian ad litemis accordingly discharged.

DATED, SIGNED and DELIVERED at NAIROBI this 8th DAY OF November, 2013.

W. M. MUSYOKA

JUDGE