[2022] KEHC 16309 (KLR)

In re Baby IM (Minor) (Adoption Cause E014 of 2022) [2022] KEHC 16309 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16309 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E014 of 2022

MW Muigai, J

December 8, 2022

N THE MATTER OF THE CHILDREN ACT, 2001 AND IN THE MATTER OF BABY ISRAEL MBUGUA (MINOR) BY

In the matter of

JKN

1st Applicant

ALWM

2nd Applicant

Judgment

1. The applicant, JKN and ALWM (“the applicants”) sought by their application to be allowed by this court to adopt Baby IM (hereafter “the child”).

2. Vide originating summons application dated July 12, 2022 the applicant sought among other orders, that FMA be appointed as the child’sGuardian Ad Litem, that ECMK be appointed the legal guardian of the child, that the Director of Children’s Department do investigate the case and file a report; that the child be considered as a Kenyan citizen and that Registrar shall make in the adopted Children’s Register an entry recording the adoption in accordance with the particulars set out in the schedule attached hereto. FMA was appointed by this court as Guardian Ad Litem on July 27, 2022.

3. The child (IM) who is the subject of the present adoption proceedings was born to GLWM at Nazareth Hospital Kiambu was born on July 16, 2020 vide birth certificate entry No 01320XXXXX.G (biological mother) reported that she conceived the aforementioned child out of wedlock and immediately two months thereafter the baby’s father absconded responsibility. The biological mother and the child were hosted by her sister AWM and her husband JKN who have been taking care of the baby I since as well as meeting all his needs appropriately. They have accepted him as their own son and he has bonded well with them.

4. The biological mother approached the Kenya Children’s Homes Adoption Society where she made clear her intention of offering her son for adoption. She was taken through Adoption for Children Explanatory Memorandum for Biological Parents/Guardians Offering Children for Adoption and signed the certificate of Acknowledgement as a confirmation. The child was freed by the Kenya Children’s Home Adoption Society’s Case Committee in its sitting of April 20, 2022 and a freeing certificate Serial No842 was issued pursuant to section 156 (1) of theChildren’s Act 2001.

5. The following documents were availed from Kenya Children’s Home Adoption Society’s for baby IM.- Minor’s photo- Birth certificate of baby I- Affidavit about child’s father whereabouts- John and Linda’s identity cards & marriage certificate- G’s consent letter & identity card- Signed certificate of acknowledgement- Offering forms- Medical particulars of the child- Final Affidavit consent by G

6. Pursuant to section 156(1) of the Children Act, Kenya Children’s Home, the relevant Adoption Society, prepared and filed in court a favorable report in respect of the proposed adoption of the child by the Applicants. Another report in respect of the proposed adoption of the child by the Applicants was prepared by the Director of Children’s Services, and this report was similarly in favor of the proposed adoption. The Guardian Ad Litem, FMA also filed the statutory report pursuant to section 160(2) of the Children Act in which she noted that the proposed adoption of the child by the applicants would be in the best interests of the child.

7. The Kenya Children’s Home filed their report dated June 14, 2022 on July 19, 2022. The report contains family and professional background information of the Child’s Adoptive Parents. According to the report the Applicants approached the Kenya Children’s Home Adoption Society’s Office on January 31, 2022 with the aim of being certified fit for adoption of the child subject of these proceedings baby IM who is aged 23 months and an only child of his mother. The 2nd applicant herein is a Maternal Aunt to the child. Interview session and home study were conducted at their residence in Machakos on March 15, 2022. The Applicants were approved as adoptive parents by the Society’s Case Committee sitting on April 20, 2022. The adoptive parents have one biological daughter. The adoptive father is a Snr Nursing Officer working at Machakos Level 5 Hospital while the adoptive mother is a Health Systems Manager working at Triggerise International. The applicants are financially stable. The applicants extended family are in support of the adoption.

8. On November 14, 2022 Mr Ndotono from the Agency appeared in court. He told the court that the Adoption in this matter is a kinship adoption as the ALWM is the maternal Aunt to the child. That she is adopting the child with her husband JKN. That couple/Applicants were vetted on April 20, 2022 by the Adoption Agency case committee on April 20, 2022 and the minor was placed in custody with the applicants. The Certificate Freeing the child for adoption is No 8XX dated 20th April, 2022. That the mother of the child was taken through the adoption process and implication and she understood and consented to the adoption of the child. The adoption was recommended.

9. The Director of Children Services through a Report dated September 14, 2022 in respect of the proposed adoption of the child by the Applicants was prepared by Emily Kimanzi the Machakos Sub- County Children’s Officer. The report contains family and professional background information of the Child’s Adoptive Parents. The Adoptive parents were married in the year 2020 under marriage certificate No 437XXX. The Applicants have one biological child called A and are planning to get more children. The family lives in a 2 bedroomed rented house in Katelembo area of Machakos Town. They individually own a car and are planning to buy property. On observation the applicants have committed themselves to protecting baby I since he was born and they wish to legalize this act of charity. They recommend that the applicants be allowed to adopt the minor.

10. The Guardian ad Litem, FMA filed her Report dated September 16, 2022 in support of these Adoption proceedings. That she had visited the homes of the applicants several times and observed their interaction with the minor and found that the interaction with the minor is very good. The child and the adoptive parents have bonded well. TheGuardian Ad litem recommended the adoption.

11. The Legal Guardian ECMK filed his statement and Affidavit of fitness as a legal guardian. ECMK is a friend to the family. He has interacted with the applicants for more than 10 years. The said documents stated that he understand that as the legal guardian he is expected to take over parental responsibility over the minor in case of death of the applicants or total incapacitation and disability. He recommend the adoption.

12. All the statutory reports that have been filed in respect of the proposed adoption of the child by the Applicant have recommended that this Court allows the adoption of the child. This Court has evaluated the facts of this adoption. This is a local and kinship adoption. It is evident that the Applicant has fulfilled all the legal requirements relative to the adoption of the child.

13. The home visits by the guardian ad litem, the Adoption Society and the Director of the Children’s Services established that the applicant is financially and socially stable and has emotional capability to provide for the upkeep and education of the child and give parental care. This court observed the applicant with the child in court and it was evident that in the period that the applicant has had the custody of the child, the child has bonded well. The child considers the applicants to be his parents.

DISPOSITION1. On the basis of a careful examination of the documents presented before this court as well as the observations made therein, this court has formed the opinion that it would be in the best interest of the child to be adopted by the applicant. Hence, this court allows the applicant’s application.2. The Applicants, JKN and ALWM are hereby allowed to adopt Baby IM. Henceforth, the child shall be known as IMK.3. The Child’s date of birth is July 16, 2020 and the place of birth shall be Kiambu County.4. The child is a Kenya Citizen by birth and entitled to all rights of a Kenyan citizen.5. ECMK shall be the legal guardian of the child should such eventuality arise.6. This Court directs the Registrar General to duly enter this order in the Adoption Register.7. The Guardian ad litem is hereby discharged.It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS THIS 8TH DAY OF DECEMBER, 2022 (VIRTUAL/PHYSICAL BCONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OFEvans Muli - For the ApplicantsPatrick - Court Assistant