[2015] KEHC 8041 (KLR)
The court held that since the child was found abandoned within Kenyan borders and her parentage could not be established, she should be presumed Kenyan by birth. The absence of a prior declaration by the Children’s Court did not preclude the High Court, which was seized of the adoption matter, from making such a...
Source-derived case information.
- Citation
- [2015] KEHC 8041 (KLR)
- Parties
- Applicant: V R I; Respondent: Director of Immigration
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 242 of 2011
- Procedural Posture
- Adoption Cause / Ruling on Post Adoption Application
- Outcome
- application allowed
- Judges
- DN Musyoka
- Legal Topics
- Adoption Orders, Citizenship by Birth, Presumption of Nationality, Child Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
V R I
Applicant
Director of Immigration
Respondent
Procedural Posture
Adoption Cause / Ruling on Post Adoption Application
Legal Issues
- 1 Whether the court can presume the adopted child to be Kenyan by birth given her abandonment within Kenyan territory.
- 2 Whether the Director of Immigration should be ordered to issue the child with a Kenyan passport.
Ratio Decidendi
The court held that since the child was found abandoned within Kenyan borders and her parentage could not be established, she should be presumed Kenyan by birth. The absence of a prior declaration by the Children’s Court did not preclude the High Court, which was seized of the adoption matter, from making such a presumption. Consequently, the child is entitled to all rights of Kenyan citizenship, including the issuance of a Kenyan passport.
Court Disposition
application allowed
Orders
- The child is presumed Kenyan by birth.
- The Director of Immigration is ordered to issue the child with a Kenyan passport.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
ADOPTION CAUSE NO. 242 OF 2011 (OS)
AND
IN THE MATTER OF THE CHILDREN’S ACT
(NO. 8 OF 2001)
AND
IN THE MATTER OF BABY C M
RULING
1. By a judgement dated 23rd November 2012, Mugo J. allowed the adoption of Baby C M, now known as S I R, by V R I. The said adoption order has since been registered in the register of adoptions by the Registrar-General.
2. The adoptive mother of the child has now come to court by an application dated 2nd September 2015 seeking two principal orders: that the child be presumed Kenyan by birth and the Director of Immigration be ordered to issue the said child with a Kenyan passport.
3. From the record before me, the child in question was found abandoned within the Dagoretti/Riruta area of Nairobi. A report of the abandonment was made to the police at the Riruta Police Station. She was placed with the Abandoned Baby Centre by the Nairobi Children’s Court, and it was from that institution that her adoption was arranged by the Little Angels Network. Neither her parents nor her relatives were traced.
4. As the child was found abandoned and no relatives were traced, he parentage is unknown. It cannot be said for sure whether she was born of Kenyan parents or not. However, since she was found abandoned within Kenyan borders, it can be presumed that she was Kenyan by birth.
5. Ideally, the Kenya Citizenship and Immigration Act, Cap 172, Laws of Kenya, under the relevant law, a declaration that a child is Kenyan by birth or should be presumed to be Kenyan by birth should be made by the Children’s Court at the point of the committal of the child to an institution for care and protection. Since the Children’s Court did not make that presumption, this court can, seized as it is of the matter, quite properly make the said presumption.
6. If the child is presumed to be Kenya by birth on account of her having been found within Kenyan boundaries, it follows that she should enjoy all the rights that accrue to Kenyan citizens under the Constitution and the Kenya Citizenship and Immigration Act, including the right to hold a Kenyan passport.
7. Consequently, I do hereby allow the application dated 2nd September 2015 in terms of prayers 1 and 2 thereof.
DATED, SIGNED and DELIVERED at NAIROBI this 18TH DAY OF DECEMBER, 2015.
W. MUSYOKA
JUDGE