[2023] KEHC 27171 (KLR)

In re Baby HJM (Adoption Cause E090 of 2023) [2023] KEHC 27171 (KLR) (Family) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27171 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E090 of 2023

PM Nyaundi, J

December 1, 2023

IN THE MATTER OF THE CHILDREN’S ACT , 2022 IN THE MATTER OF ADOPTION OF BABY HJM AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY

In the matter of

CME

Applicant

Judgment

1. The Applicant, CME vide Originating Summons dated 2nd May 2023 has made an application for the adoption of BABY HJM the child herein. The applicant is not married. She is motivated by the desire to raise her own family and become a mother.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 2nd of November 2023.

3. The Applicant is Kenyan Citizen and of the Christian faith. She avers that she has the financial means and capability to take care of the Child. The applicant is ICT Manager at [Particulars Withheld]. She resides in Syokimau. She has had custody of the child since 21st October 2023. She fully understands the consequences of an adoption order.

4. The child is presumably born on 16th June 2021. The child was found abandoned on 14th September 2021 at Uhuru Park, Nairobi. A Good Samaritan, Jackson Githinji, rescued the child and took her to Kenyatta National Hospital for treatment and further reported the abandonment at Capitol Hill Police Station where the matter was booked under OB NO 29/29/07/2021.

5. The matter was reported to the Children’s Department, which referred the child to New Life Home Trust for care and protection pending investigations. The child was discharged from Kenyatta National Hospital. The child was admitted into New Life Home Trust on 3rd September 2021 and named HJM.

6. The administration of New Life Home has continuously made efforts to trace the child’s mother, and follow up letters from Capitol Hill Police Station; both which have yielded no fruits. The New Life Home discovered that the OB information captured at Capitol Hill Police Station was in reference to a non-related matter: and consequently, reported the abandonment of the child at Kenyatta Police Post and booked under OB NO 5/14/9/2021. Through a letter dated 22nd June 2022 addressed to Kenyatta National Hospital, New Life Home Trust explained the discrepancies concerning the different OB Numbers.

7. The police officers in charge of the matter by final letter dated 12th July 2022, have stated that efforts to trace the child’s mother have proven to be futile. On 29th August 2022. The Children’s Department, Nairobi recommended that the child be committed into New Life Home Trust. The child was committed into home on 22nd September 2022 by the Children’s Court at Nairobi as evidenced by committal Orders given in Protection & Care Case Number E427 of 2022.

8. Prior to the hearing of the adoption application, Buckner Adoption Services prepared and filed a report dated 30th September 2022 and issued a certificate serial No. 0597 declaring the child free for adoption. On 13th July 2023 the Court appointed Guardian Adlitem GWK.

9. GWK the Guardian ad litem was present in court, presented her report dated 10th September 2023. She confirmed to the court that she had visited the applicant’s home. The child was well taken care of and the applicant bonded well with the child. She recommends the adoption. The child was present in court.

10. An officer of the Department of Children Services, Winfred Ikinya attended court and presented a report dated 9th October 2023. The report was prepared by Ezekiel Kimani and countersigned by Mary Atati. The report established that the child is 2. 3 years old having been born on 16th June 2021. The initial Police letter from KNH Police Post-dated 14th April 2022 indicates that the child was found abandoned at Uhuru Park by a Good Samaritan. Upon rescue, the matter was reported both at Capital Police Post and at KNH Police Post. The OB at KNH Post is 5/14/9/2021.

11. The child was then placed at New Life Home Trust for further care and protection after she was discharged from Kenyatta National where she had been admitted for medical care. Her formal committal was secured from Nairobi Children Court through protection and care case E472/2022.

12. The report further documents that the final police letter dated 12th July 2022 indicates that no relative was ever found and that no one claimed the child in the course of their investigations. The child was placed under the foster care of the Applicant on 21st October 2022 pending adoption.

13. The proposed Legal Guardians CMM AND HBOO attended court and confirmed they are willing to take up the role of legal guardian. They are the applicant’s sister and brother in law.After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides. The court may make an adoption order on application by-(1)(a)Sole applicant; or(b)Two spouses jointly.(2)The court shall not make an adoption order in any case unless-i.the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; andii.The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

14. The Applicant is 50 years.Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child.

15. This principle is restated under section 8 of the Children Act, 2022 which providesBest interests of the child. In all actions concerning children, whether undertaken.(1)By public or private social welfare institutions, courts of the 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.Section 194 (1) (c) of the Act also requires that if the adoption order is madeThe order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

15. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants.

16. Accordingly, I allow the prayers sought in the Originating Summons dated 2ndMay 2023 and order as follows:i.The Applicant CME be allowed to adopt BABY HJM.ii.The Child is to be known as AHJI.iii.The Child be presumed to be a Kenyan citizen by birth.iv.The child’s date and place of birth is 16th June 2021 in Nairobi County.v.CMM AND HBOO are hereby appointed as legal guardians of Childvi.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.vii.The Director Immigration is authorized to issue the child with a Kenyan passportviii.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 1ST DAY OF DECEMBER, 2023. ……………………………P M NYAUNDIHIGH COURT JUDGEIn the presence of Ms Kimenyi Advocate for the Applicant