[2023] KEHC 3875 (KLR)

In re Baby IOT alias OT alias IOP (Adoption Cause E166 of 2021) [2023] KEHC 3875 (KLR) (Family) (20 April 2023) (Judgment)

Neutral citation: [2023] KEHC 3875 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E166 of 2021

DKN Magare, J

April 20, 2023

IN THE MATTER OF THE CHILDREN ACT, 2001 AND IN THE MATTER OF BABY IOT alias OT alias IOP

In the matter of

JKK

1st Applicant

JWM

2nd Applicant

Judgment

1. The Applicant JKK and JWM aged 56 and 49 years respectively testified on their amended originating summons dated 27/1/23. They were married on November 18, 1999. They are in a monogamous setting. They are financially stable. I have perused their financials and I am duly satisfied.

2. The legal guardians signed the consent. They are PGM and JMG. They understand their Roles as legal guardians. The Guardian ad litem, BWM filed a report dated 13/2/2023. The county Coordinator on behalf of the Secretary of Children service prepared a report dated 12/1/2023. They approved they and they recommend it.

3. Winfred Kinya presented a report on behalf of the secretary for Children service. While Jacqueline Wambui testified that certificate No. XXX dated 27/2/2023 was issued declaring the minor free for adoption. The minor was placed in the care of the Applicants in 2015.

4. I am satisfied that the Applicant is not disqualified is not disqualified by dint of Section 186(6) of the Children Actfrom adopting. The section provides as doth: -The Court shall not make an adoption order in favour of an Applicant or joint Applicants if the Applicant or joint Applicants, or any of them—a)is of unsound mind within the meaning of the Mental Health Act (Cap. 248);(b)is incapable of exercising proper care and guardianship of a child;(c)has been convicted by a Court of competent jurisdiction for any of the offences specified in the Third Schedule or similar offences;(d)in the case of joint Applicants, if the Applicants are not married to each other;(e)is a sole male Applicant except where the Applicant is a biological relative of the child; or(f)is a foreign Applicant except where the Applicant is a biological relative of the child.

5. The applicants have met the Pre-requisites for Adoption under section 84 of the Children’s Act, 2022(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.(2)A person, including a parent, guardian or adoption society, shall not, prior to the making of an adoption order, entrust a child to the care, possession or control of any person not qualified to adopt a child in accordance with this Act.(3)An applicant shall not preselect a prospective adoptive child except—(a)in the case of kinship adoption;(b)Where the applicant is a foster parent seeking to adopt a fostered child under the applicant’s care.(4)The Secretary shall monitor and submit reports to the courts on the wellbeing of a child who is subject to adoption proceedings.(5)Any person who contravenes subsections (1) or (2) of this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million shillings, or to both.

5. Indeed, the applicants meet the requirement of Section 183 of theChildren’s Act.

6. Having listened to the Applicants and perused the law, I am satisfied that the applicants is fit and proper persons to adopt the minor herein.

Disposition 7. The Amended originating summons dated 27/1/23 are hereby allowed in the following terms: -a.The Applicants, JKK and JWM be authorized to adopt IOT aka OT aka IOP to be known as BNKa.The Guardian ad litem be discharged.b.PGM and JMG be appointed jointly as the minors legal guardians.c.The Registrar General to enter the adoption in the Register of adoptions.d.The Registrar of deaths and births do issue the child with a birth certificate.e.The child be declared to be born on XXXX2012 at Patanisho Nursing Home, Nairobi.f.The child is Kenyan by birth, and the consent of the biological mater has been duly given.g.This file be sealed and closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 20TH DAY OF APRIL, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.DENNIS KIZITO MAGAREJUDGEIn the presence of:Mr Onsongo for the ApplicantCourt Assistant - FirdausM.D. KIZITO, J.