[2023] KEHC 25317 (KLR)

In re Baby GW (The Child) (Adoption Cause E222 of 2022) [2023] KEHC 25317 (KLR) (Commercial & Admiralty) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25317 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Admiralty

Adoption Cause E222 of 2022

MA Odero, J

November 10, 2023

IN THE MATTER OF CHILDREN’S ACT NO 8 OF 2001 AND IN THE MATTER OF ADOPTION OF BABY GODFREY WANGU (THE CHILD)

In the matter of

LNW

1st Applicant

GEW

2nd Applicant

Judgment

1. Before this court is the Amended Originating Summons dated 20th March 2023 by which the applicants lawrence nabira wanyama and gladys eshiboko wanyama seeks the following orders:-“1. That the applicants be authorized to adopt godfrey wangu nabira, minor who is to be known as godfrey wangu nabira.2. That the Registrar General be directed to enter this adoption into the Register of Adoptions.3. That auleria micheal tyemeri be appointed as the legal guardian of the child herein.4. That the child be presumed to have been born in Kenya.

2. The Application was supported by the Affidavit of even date sworn by the Applicants. The matter was canvassed by way of vive voce evidence on the virtual platform.

3. The Applicants are a couple who got married in the year 1981. They now seek to adopt the subject child who is fifteen (15) year old grand-son.

4. The Applicants state that the child’s mother lives in Botswana whilst the child’s biological Father is irresponsible and jobless and is not able to provide for the needs of the child.

5. The Applicants both state that they understand the legal implications of an adoption order. They undertake to accord to the subject child all the rights due to a biological child including the right of inheritance.

Analysis and Determination 6. I have considered this application, the Reports filed in court as well as all the evidence adduced in support thereto. The prerequisites for adoption are set out in Section 184 (1) of the Children Act 2002 which provides –“184(1) A person shall not commence any arrangements for the adoption of a child unless –a.the counsel in accordance with the rules has declared the child free for Adoption.b.the child has attained the age of six weeks.”

7. The subject child was born on 16th October 2008. Therefore the child is now aged fifteen (15) years old and is well above the six (6) week age limit provided for in law.

8. KKPI Adoption Society which is a registered adoption agency have annexed to their report a copy of their certificate Serial Number 806 dated 27th November 2021 declaring the child Free For Adoption. I find that the legal prerequisites for an adoption order have been met.

9. The duty of this court is to analyze the evidence on record to determine whether the Applicants are suitable adoptive. The Applicants are both Kenya citizens as evidenced by the annexed copies of their National Identity Cards (Annexture LNW’1’).

10. The Applicants are a couple who got married under Luhyia Customary Law. The couple later solemnized their union on 6th June 1981. A copy of their Marriage Certificate Serial Number 410671 appears as Annexture LMW’2’ to the summons. Their union is blessed by four (4) children who are all adults and live independent lives.

11. The 1st Applicant was a University lecturer who retired in the year 2014. He now lives at the family rural home in Busia County. The 2nd Applicant who holds dual Kenyan and British citizenship is a registered nurse. She works as a midwife with Castlegreen Nursing Home in the U.K. The 2nd Applicant has annexed a copy of a letter dated 9th June 2021 (Annexture LNW’4’) from her employer as well as copy of Payslip (Annexture LNW ’5’) confirming the fact of her employment.

12. The couple have also annexed copies of bank statements for accounts held at Barclays Bank UK (Annexture LNW’6’). Additionally, the couple own land in Busia County. Their monthly income is approximately Kshs.400,000. I am satisfied that the Applicants are financially stable and are able to provide for the needs of the subject child.

13. The Applicants are both Christians and intend to raise the child in the Christian faith. They have annexed a copy of a recommendation letter dated 19th May 2021 written by Reverend Isaac Namango Wandera of St. Thomas Mayenje Church in Nambale Diocese Busia County. (Annexture LNW’3’)

14. The Applicants were both examined by a Doctor and were found to be physically and mentally fit. They have both annexed copies of clearance certificates issued to them by the Directorate of Criminal Investigations. (Annexture LNW’7’)

15. The Applicants have appointed auleria tyemeri micheal as the legal guardian for the child. The proposed legal Guardian has signed a consent dated 20th March 2023 confirming her willingness to act as the legal Guardian for the child (Annexture LNW’18’)

16. The Applicants told the court that their adult children are aware of and support their intention to adopt the subject child. Copies of the consents dated 20th march 2023 signed by their children dennis wanyama, allan wanyama, bryan wanyama and june wanyama is annexed to the summons page 55-59 of bundle.

17. Section 186(8)(a) of the Children Act 2022 provides as follows:-“(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons—(a)a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child;(b)on the application of one of the spouses, the consent of the other spouse; and(c)in the case of a child who has attained the age of ten years, the child himself or herself.” [own emphasis]

18. The child’s biological parents bryan wanyama and bakisani nlumbile both testified in court. they both confirmed that they were aware of and fully support the application for adoption made by the child’s paternal grandparents. The parents both confirmed to the court that they understood that an adoption order once made cannot be reversed. The child’s mother signed Affidavit of consent dated 13th December 2020 (Annexture LNW’15’) whilst the child’s father signed a consent dated 20th March 2023 (Annexture LNW’14’). I am satisfied that the child’s biological parents have voluntarily consented to this adoption.

19. I note that the Applicants are both senior citizens. Section 186 (2) of the Children Act 2022“186 (1) 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; andb.the applicant or both applicants in a joint application is more than twenty -one years older than the child.”

20. The Applicants herein are aged 73 years male Applicant) and 66 years female applicant. They are both twenty-five (25) years older than the child, but both are aged above sixty-five (65) years old and would be disqualified under the provisions of Section 186 (2) (i) of the Act.

21. However the provisions in Section 186 (2) (3) provides that:-“(3)The restrictions in subsection (2) shall not apply in any case where the sole applicant or one of the joint applicants is the mother, father or relative of the child” [own emphasis]

22. The Applicants herein are both relatives of the child being the paternal grand-parents of the child.

23. Further Section 186 (5) provides that:-(5)The court shall not make an adoption order in favour of the following persons unless the court is satisfied on reason to be stated on the record that there are special circumstances that warrant the making of the adoption order [in respect of] an applicant or joint applicants who has, or both have attained the age of Sixty -five years.)

24. As earlier stated the subject child is the grand child of the Applicants. The child’s mother told the court that she released the child to his father in December 2014 as she was not in a position to provide for the child. The child’s Father told the court that he is unemployed and has no means to provide for the child.

25. The child’s parents confirm that it is the Applicants who have been meeting all the needs of the child including paying his school fees, and paying rent for the house where the child lives with an uncle.

26. The reports on record indicate that the child’s father is an alcoholic who is unable to retain a job and who makes no provision for his two (2) children. If the Applicants did not step in to take up the parental role then the child would be left destitute and may have to be committed to a Home.

27. I find that these are special circumstances warranting the approval of this adoption by persons who are aged over Sixty-five (65) years old.

28. Section 8(1) of the Children Act 2022 provides as follows:-“8(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of 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.” [own emphasis]

29. This is a child who is not receiving any care from her biological parents. The child’s paternal grand-parents having raised four (4) children to maturity valiantly stepped in to provide for the child’s needs and to provide parental care for the child. This is a kinship adoption which is provided for by Section 193 of the Children Act. The child will remain within the same family unit and will retain regular contact with her blood relatives.

36. Section 186(8)(c) of the Children Act 2022 provides for consent to adoption as follows:-“(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons—(a)………………(b)……………..(c)In the case of a child who has attained the age of ten years, the child himself or herself.” [own emphasis]

37. I was able to see the child online. He was a healthy boy who cheerfully answered the questions put to him by the court. The child further confirmed that he knew the Applicants as his grandparents. The child expressed his willingness to be adopted by the Applicants. The child also signed a letter of consent (Annexture LNW ‘14’). I am satisfied that the child has given his consent to this adoption as required by law.

39. A home visit was conducted by the Childrens Department. The Applicants live in their own home in Busia County. They have a spacious three bed-roomed mansionette. In Nairobi the child lives in a two bed-roomed Apartment with an Uncle. The Applicants pay the house rent. The living conditions were found to be suitable.

40. I have perused the reports prepared by the Adoption Agency, the Guardian Ad litem and the Director Childrens Services. All three reports were positive and all recommend the adoption.

41. All in all I am satisfied that this adoption serves the best interest of the subject child. I therefore allow the application and make the following orders:-(1)Applicants lawrence nabira wanyama and gladys eshiboko wanyama are authorized to adopt the child known as godfrey wangu nabira.(2)Upon adoption the child will be known as godfrey wangu nabira(3)auleria micheal tyemeri is appointed as the legal guardian of the child.(4)The Registrar-General is directed to make the relevant entry in the Adoptions Register.

DATED IN NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. MAUREEN A. ODEROJUDGE