[2025] KEHC 3293 (KLR)

In re Baby J (A Child) (Adoption Cause E008 of 2024) [2025] KEHC 3293 (KLR) (19 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3293 (KLR)

Republic of Kenya

In the High Court at Embu

Adoption Cause E008 of 2024

RM Mwongo, J

March 19, 2025

ADOPTION CAUSE NO. E008 OF 2024

IN THE MATTER OF THE CHILDREN ACT CAP. 141 OF THE LAWS OF KENYA

IN THE MATTER OF THE ADOPTION OF BABY HP also known as ABANDONED BABY J (A CHILD)

In the matter of

PMN

1st Applicant

Fkk

2nd Applicant

Judgment

The application 1. The applicants filed originating summons dated 04th November 2024 seeking the following orders from this court:1. That the applicants be authorized to adoptBaby HP also known as abandoned Baby J, a minor who is to be known as ISM and the Registrar be directed to enter this adoption into the Register of Adoptions;2. That EMN and CW be appointed as the legal guardians of the child; and3. That the child be presumed to be born in Kenya.

2. The originating summons was accompanied by a statement by the applicants in support of the application.

The applicants’ background 3. The 1st applicant (male) was born in 1978 while the 2nd applicant (female) was born in 1979. They got married to each other in December 2009. They had 3 children who all died shortly after birth. Both applicants come from families with several siblings and they relate well with their siblings. The 1st applicant is self employed while the 2nd applicant is a farmer and they both earn a decent income from their endevours. They desire to adopt the child so that they can share their lives with him.

4. The applicants live in a 4 bedroomed house in Runyenjes. The house is well services with electricity and water from a nearby river at a small monthly fee. They profess Christian faith and are members of a local church where they actively participate. Their hobbies include paying rugby, volleyball, charity work and watching movies. They stated that their families are supportive of their application to adopt the child.

Background of the child 5. The above-mentioned Baby boy was estimated to have been born on 19th June 2023. The minor was found abandoned on 20th June 2023 at Majengo slums area in a kiosk by a member of the public, a good Samaritan, who rescued the Baby and reported the matter at Shauri Moyo police station vide OB NO. 84/20/06/2023 at 1940 hrs. The minor was then taken to Pumwani Maternity Hospital by a police officer from Shauri Moyo and the good Samaritan who had rescued her. He was admitted at the said facility to the New Born Unit with an IP No. 9209/23 on the same day.

6. On 10th July 2023, the Sub County children's officer wrote a letter to Pumwani Maternity Hospital requesting the child be released to House of Charity children's home for care and protection. The child was later discharged from the hospital and admitted at House of Charity children's home for care and protection on 17th July 2023.

7. On 26th July 2023, the Sub County children officer wrote a referral letter to House of Charity Children's Home, 07th August 2023, the Sub-County children's Officer in Kamukunji requested that the Baby be committed to House of Charity Children's Home for Care and protection for a period of three months pending investigation.

8. On 20th September 2023, the child was committed to House of Charity Children's Home for care and protection through the Children's Court at Nairobi, Protection and Care Case no. E442/2023 for a period of three months.

Guardian Ad Litem 9. The court, vide order issued on 25th November 2024, allowed chamber summons dated 04th November 2024 through which SM applied to be appointed as Guardian ad litem in accordance with section 188(1) of the Children Act. The court also ordered that the Secretary of Children’s services files a report and the appointed guardian ad litem.

Report by the Guardian ad litem 10. In accordance with section 188(2)(b) of the Children Act, the Guardian ad litem filed a report dated 10th January 2025 in court. He vouched for and highly recommended the applicants as adoptive parents. He reported on the background of the couple and highlighted their desire to be parents to the child. He stated that the applicants and the child have bonded well.

Report by the Secretary, Children Services 11. Section 184(4) of the Children Act requires that the Office of the Secretary of Children Services shall monitor and submit reports to the courts on the wellbeing of a child who is subject to adoption proceedings. In compliance with this provision, a report dated 17th February 2025 was filed. The report detailed the history and background of the applicants in relation to this case. Upon a home visit, the children officer detailed that the applicants live on a 2½ acre piece of land with a 7 bedroomed well-furnished house on it. The child shared the applicants’ bedroom but they had made provision for his own room when he is older. It appeared that the child had bonded well with the applicants.

Suitability of the applicants for adoption 12. Section 186(1) and (2) of the Children Act provides for who may adopt a child, as follows:“(1)The Court may make an adoption order on application by—(a)a sole applicant; or(b)two spouses jointly.(2)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; and(b)the applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.”

13. The applicants are both above the age of 25 years and below 65 years, making them eligible prospective parents for the child. They are both Kenyans and law-abiding citizens. They have also demonstrated their social and financial ability to take care of the child since their resources are sufficient.

Best interest of the child 14. A child’s best interests are of paramount importance in every matter concerning the child. This is the dictate of Article 53(2) of the Constitution. Section 4(2) of the Children Act also elevates the best interest of the child and provides:“Despite subsection (1), a provision in another legislation on children matters may prevail if it offers a greater benefit in law to a child.”

15. The child is above six (6) weeks old and below 18 years. This is the statutory requisite age bracket for a child to qualify for adoption under Section 184 (1) of the Children’s Act.

Report of the Child Adoption Society 16. Section 185(2) of the Children Act requires that an application for adoption be supported by a report of a duly registered adoption society. In this case, Buckner Kenya Adoption Services provided a detailed report of its findings on the child together with the certificate declaring the child free for adoption. In their report, they stated that the minor has remained unclaimed for a period of 6 months and so it is in his best interest to declare him free for adoption under section 185(4)(c) of the Children’s Act.

Conclusion and Disposition 17. The documentation presented in court regarding the adoption of Baby HP also known as Abandoned Baby J qualifies his adoption by the applicants. The applicants also meet the legal requirements required to enable them to adopt the child.

18. In this court’s view, it is in the best interest of the child that he be adopted by the applicants.

19. Accordingly, Therefore, the prayers sought may are granted as follows:1. This adoption is deemed to be a local adoption;2. The applicants be and are hereby authorized to adopt Baby HP also known as abandoned Baby J;3. The consent of the biological parents is hereby dispensed with since the child was abandoned;4. Hence forth, Baby HP also known as abandoned Baby J shall be known as ISM;5. The Registrar General shall make the appropriate entry of ISM in the Adopted Children’s Register;6. The Registrar shall issue to the applicants a certified copy of the entry pursuant to Order 4 herein the Adopted Children Register, upon payment of the prescribed fee;7. The child ISM is presumed to be a Kenyan citizen born in Kenya;8. The Guardian ad litem is hereby discharged; and9. EMN and CW are hereby appointed Legal guardian of the child ISM.

20. Orders accordingly.

DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 19TH DAY OF MARCH, 2025. R. MWONGOJUDGEDelivered in the presence of:Muhanda for ApplicantFrancis Munyao - Court Assistant