[2023] KEHC 25516 (KLR)

In re Baby E (Adoption Cause E001 of 2023) [2023] KEHC 25516 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25516 (KLR)

Republic of Kenya

In the High Court at Makueni

Adoption Cause E001 of 2023

TM Matheka, J

November 17, 2023

In the matter of

DMN

1st Applicant

Rmn

2nd Applicant

Judgment

1. The applicants DMN and RMN have brought the originating Summons dated 16th January 2023 seeking orders inter alia that the requirements of section 186(8)(a) be waived as provided for by s. 187 (1) of the Act. Applicants be allowed to adopt baby E also known as EKM, the appointment of the guardian ad litem and the legal guardians. The also sought that the Director of the Children’s department to investigate the case and file a report. And further that the Registrar General be directed to make in the Adopted Children Register an entry recording the adoption in accordance with the schedule attached to the order.

2. The Originating Summons is brought under sections 183, 184, 185, 186, 187,188, 194,195, 195 and 200 of the Children Act no 29 of 2022. It is supported by the joint affidavit of the applicants sworn on the 16th January 2023. The applicants have also filed a statement in support of the application in which the annex the supporting documentsi.The applicants’ certificate of marriageii.The letter from Kasarani Police Station Child Protection Unit Happy Children’s Home to rescue the child who was abandoned at Outering Road Kariobangi vide OB 50/15/01/2018iii.The Report from the Children’s Officer Kasarani dated 16th January 2018 vide ref CS/KAS/3/16 VOL.I(119) for purposes of committal of the child to the Children Charitable Institution The Committal order made by the Children Court Nairobi in P&C no 44 of 2018iv.The bundle of documents from Change Trust, the Adoption Agency which includes the letter from Kasarani Police station dated 14th November 2019 declaring that no one had come to claim E, the application to adopt a child by the applicants, the recommendations from their pastor, chief, and family. There also the medical and financial records of the applicants, including the certificates of good conducts, and the certificate declaring the child free for adoption s/no 00355 dated 1st November 2019 showing date of birth to be 31st October 2016. There is also the report from the Directorate of Children Services dated 16th June 2023 which recommends the applicants as suitable adoptive parents.

3. I heard the applicants. I had the opportunity to observe them in the court room with the minor and it is evident that they have bonded.

4. Having all the foregoing the only issue for determination is whether the application for adoption ought to be allowed.

5. Article 53. of the Constitution provides for the rights of Children(1)Every child has the right—(a)to a name and nationality from birth;(b)to free and compulsory basic education;(c)to basic nutrition, shelter and health care;(d)to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;(e)to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and(f)not to be detained, except as a measure of last resort, and when detained, to be held—(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that take account of the child’s sex and age.(2)A child’s best interests are of paramount importance in every matter concerning the child.

5. For these rights to be enjoyed to the fullest the child needs to be in a family that can ensure all these. S. 11 of the Children Act provides for theRight to parental care(1)Every child has the right to parental care and protection.(2)Except as is otherwise provided under this Act, every child has the right to live with his or her parents.

6. Where the child cannot be with the family the Children Act provides for "alternative care" means the arrangement whereby a child is looked after outside the parental home under the provisions of this Act;

7. The provision of alternative care is recognized as one of the means through which the child’s right to social security can be fulfilled as provided by s. 12 of the Children Act12. Right to social security (1) Every child whose parent or guardian is unable to maintain the child has the right to social security as guaranteed by Article 43(3) of the Constitution

8. In determining the issue at hand I must consider whether in granting the order the objectives of alternative care will be achieved, These are set out at s. 12 (3) The objectives of alternative care under subsection (2) are to—(a)Facilitate the provision of parental care and protection of a child in accordance with the best interest and wellbeing of the child;(b)Place the child as close as possible to his or her usual place of residence;(c)Provide a stable, loving and protective home for the child with permanency as the long-term goal; and(d)Safeguard the child from abuse, violence or exploitation.

9. The court must be guided by the principles as set out under s. 12 (4) which provides (4) The following principles shall be considered when placing a child in alternative care—a.The family is the fundamental group in society that provides the care and protection for a child;b.The process of providing alternative care to a child shall be participatory, and in the best interest of the child;c.Poverty, disability or provision of education shall not be the driving factor for removing a child from his or her family and placing him or her in alternative care;d.The removal of a child from his or her family for the purpose of placement in alternative care shall be temporary and a last resort, and shall be carefully monitored in accordance with this Act;e.Siblings shall be kept together during removal and placement in alternative care, unless it is unsafe to do so, or not in the best interest of the siblings;f.The placement of a child in alternative care shall be appropriate to the child’s individual needs;g.The provision of alternative care shall not be carried out for the primary purpose of advancing the religious, political, economic or any other personal goals of the caregiver; andh.The use of institutional care shall be limited and provided under strict standards and regulations, and children under three years of age shall be placed in family-based care settings

10. From the documents and the evidence before me it is clear that the bay E was a child in need of care and protection having been abandoned by the parents and rescued to a Charitable Children Institution (CCI). Those parents have never shown up to claim the child all these years and they have not been traced. In the circumstances, it is in the best interest and wellbeing of Baby E to be placed with a family so that his right to parental care and protection is fulfilled.

11. The Applicant have established that they are ready willing and able to provide a stable, loving and protective home for Baby E. They are highly recommended and the Directorate of children Services finds them suitable adoptive parents for the minor.

12. Having considered all the evidence presented, having heard the applicants and their chosen guardian’s ad litem, I am satisfied that the applicants understand the role they are taking up with respect to Baby E, to be his parents and in the process to fulfill his rights as a child and they to do so with their duties and rights as his parents. In the circumstances their application is allowed and the following orders do issue:1. That the requirement for consent of the parents of the Baby E for this adoption be and are hereby waived.2. The applicants’ application to adopt baby E as a couple be and is hereby allowed. The Baby will take up the Name EKM3. MNM & CMN be and are hereby appointed as the Legal Guardians of the minor4. The Guardian ad litem Justus Mutuku Ing’aa be na dis hereby discharged.5. The Registrar General be na d is hereby directed to make an entry in the Adopted Children Register recording this adoption accordingly

13. No orders as to costs

DATED SIGNED AND DELIVERED THIS 17TH NOVEMBER 2023……………………………………………………………MUMBUA T MATHEKAJUDGECA MwiwaApplicants - Both applicant present