[2021] KEHC 9810 (KLR)

In re Baby H (Child) (Adoption Cause E004 of 2021) [2021] KEHC 9810 (KLR) (2 September 2021) (Judgment)

Neutral citation: [2021] KEHC 9810 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause E004 of 2021

JN Onyiego, J

September 2, 2021

IN THE MATTER OF ADOPTION OF BABY H (MINOR CHILD)

Between

FSH

1st Applicant

MNKG

2nd Applicant

and

K K P I Adoption Society

Respondent

Judgment

1. FSH i (hereinafter the 1st applicant) and MNKG (hereinafter the 2nd applicant) have moved to his court under an originating summons dated 8th March, 2012 and filed on 11th March, 2021 seeking orders that;(a)They be authorized to jointly adopt baby H (a minor)(b)ZD be appointed Guardian Ad litem in this case(c)The name of the minor child to change to HMNKG H.(d)The minor herein be declared a Kenya citizen(e)That the Registrar General be directed to enter the name of the child in the adopted children’s register in the prescribed form.(f)That costs in this summons be costs in the cause.

2. The application is supported by particulars contained in statements separately executed by the applicants. The two applicants who presented themselves as husband and wife contracted their marriage under Islamic Law on 4th January, 2012 in India. Despite cohabitation for about 9 years now, they have not been blessed with a child of their own.

3. According to their statements aforesaid variously executed, the second applicant was born on 6th September 1987 at Hambo, Comoros. By nationality, she is French so is to her parents. On the other hand, the first applicant born on 1st June, 1983, is a Kenyan citizen working for a gain as a cosmetologist in Texas in U.S.A where they both live.

4. The motive for this adoption by the applicants is to have a child to fill the gap of not having a biological child due to the second applicant’s medical complications.

5. Concerning the child herein, he is the biological child to one RGAJ and MAAM. In the statement executed by the 1st applicant, she stated that RGAJ’s mother is a sister to her mother and therefore the two are cousins.

6. That upon consultation and discussion between the two families, the applicants approached the biological parents of the baby to conceive a baby and thereafter give the same to them as a gift. The child who is a Kenyan national was therefore handed over to the applicants by the biological parents upon delivery on 30th October, 2020. Consequently, the adoption process commenced by the KKPI adoption society who declared the child free for adoption on 27th January 2021.

7. Having instituted these proceedings, Zafir Din was on 17th March, 2020 appointed as Guardian Ad litem pursuant to the summons dated 8th March, 2020. Consequently, the Director Children Services and the guardian ad litem were ordered do file evaluation and assessment reports before the hearing date. Subsequently, the Director Children Services filed his report through the County Children Coordinator Mombasa on 7th May, 2021. The report dated 31st March 2021 recommended the adoption describing the same as a kinship adoption. KKP adoption Society filed theirs dated 22nd November, 2020 recommending the adoption. Equally, Zafir Din the Guardian Ad litem filed her report dated 25th April, 2020 on 11th May 2021 also supporting the adoption.

8. During the hearing, the applicant (Pw1 and Pw4) adopted the content contained in their respective statements. They pleaded with the court to grant their prayer. They also acknowledged that they understood the consequences of adoption and that it is permanent.

9. On the other hand, RGAJ (Pw6) told the court that she is the biological mother to the child. Besides, she stated that they have three other children aged 15, 4 and 4 years. She confirmed that she and her husband (Pw7) had agreed to conceive a baby to give to the applicants as a gift. She also stated that the 1st applicant is her cousin through their mothers who are sisters and that the child was a blessing to the applicants. Her testimony was corroborated by her husband (Pw7) who said that under the Borha Daudi community religious faith, the act of gifting a child to a friend was recognized. They acknowledged that an adoption order is irrevocable and that they were comfortable with the same.

10. I have considered the petition herein, affidavits and statements in support. I have also considered materials attached thereto and various witnesses’ evidence. Issues that crystalize for determination are; whether the child is legally available for adoption; whether the applicants are suitable to adopt the baby and, whether the adoption is in the best interests of the child.

11. The baby herein is a Kenyan citizen born on 30th October, 2020 at Mombasa hospital (See birth certificate S/No partuculars withheld). He is a biological son to RRGAJ and MAAM. The biological mother RRGAJ is a cousin to the 1st applicant. The ideal to conceive the child herein was pre-determined and upon delivery to be handed over to the applicants as a gift. It came to pass when the baby was born. Ideally, the child was placed before being declared free for adoption.

12. Nevertheless, the child was later declared free for adoption on 27th January 2021. He is above six weeks the minimum age required for an adoptive baby pursuant to Section 156 of the Children Act. Under Section 157 of the Children Act, any child who is resident in Kenya whether born in Kenya or not is eligible for adoption. This being a kinship adoption with the child given voluntarily by the biological parents, he is legally fit and available for adoption.

13. As concerns the suitability of the parents, the father is a Cosmetologist Engineer working and residing in Texas USA where he lives. His monthly income is about 6000 US dollars. Financially, therefore, they have been described as stable People who also own a house worth 25 million in Nairobi. They understand the consequences of adoption to the effect that it is permanent and that the child will enjoy various rights including inheritance of their property. The adoptive father being a Kenyan citizen, the adoption herein is qualified to be a local one. In terms of age, they fall between 25 and 65 years which is the statutory age bracket flor potential adoptive parents under Section 158 of the Children Act. I have no doubt, the applicants are suitable to adopt the baby.

14. As concerns the best interests of the child, Article 53 (2) of the Constitution and Section 4 (2) and (3) of the children Act are clear to the extent that, before any decision concerning a child is made, the best interests of the child must be taken into consideration.

15. The baby herein was born for a specific purpose that is, gifting the applicants. Both parties agreed that it is common practice in the Borha community a faith they profess. The child has already been handed over to the applicants. To return the baby to the biological parents will be unfair to them as they had no plan of taking care of a 4th child. Without subjecting the child to possible stigmatization of rejection by the biological parents, it is in the best interests of the child that he be adopted by the applicants. He will definitely enjoy provision of basic necessities, right to inheritance and appreciation.

16. To that extent, I am satisfied that the applicants have met the threshold for an adoption order to be granted and that the adoption is in the best interests of the child. Accordingly, I am inclined to make orders as follows;(a)The applicants are authorized to adopt baby H who henceforth shall be known as HMNKG(b)That the child’s date of birth shall be 30th October, 2020 and place of birth Mombasa.(c)The child is declared a Kenyan citizen.(d)The Registrar General to enter this adoption order in the adopted children’s register(e)The Guardian Ad litem is discharged(f)Najmuddin Kurban Hussein and Rashida Najmudin Mohamed are hereby appointed as legal guardians in the event of any eventuality befalling the applicants.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2NDDAY OF SEPTEMBER 2021J. N.ONYIEGOJUDGE