[2023] KEHC 26859 (KLR)

In re Baby JJ (Child) (Adoption Cause 13 of 2023) [2023] KEHC 26859 (KLR) (5 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26859 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause 13 of 2023

G Mutai, J

December 5, 2023

IN THE MATTER OF THE CHILDREN ACT, 2022 AND IN THE MATTER OF BABY JJ (A CHILD) AND IN THE MATTER OF AN APPLICATION FOR ORDERS OF ADOPTION OF BABY JJ (A CHILD) BY PSS AND MWW (THE JOINT APPLICANTS) BETWEEN

Between

PSS

1st Applicant

MWW

2nd Applicant

and

Change Trust

Respondent

Judgment

1. The Joint Applicants filed the Originating Summons dated 29th May 2023 vide which they seek the following orders:-1. Pursuant to Article 14(4) of the Constitution of Kenya, 2010 and Section 7 of the Children Act, 2022, this Honourable Court be pleased to declare the child Baby JJ as a Kenyan citizen by birth;2. Pursuant to the provision of Section 187 of the Children Act, 2022, this Honourable Court be pleased to dispense with the requirements of the consent to the adoption as required by the provisions of Section 186 of the Children Act, 2022;3. The Joint Applicants, PSS and MWW, be authorized to adopt Baby JJ, a child;4. Upon the making of the adoption orders, the child be known as JSS;5. Upon the making of an adoption order, JKW be appointed a guardian of the child as provided for by the provisions of section 195 of the Children Act, 2022;6. Upon the making of the adoption order, the Registrar General do make an entry recording the adoption and the estimated date of birth of the child as being 16th March 2020 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and7. The costs of this application be costs in this cause.

2. In the statement in support of the adoption application, the Joint Applicants averred that they are both adult Kenyan citizens of sound mind, born on 14th January 1985 and 20th February 1983, respectively. They are residents of Mombasa County living in Nyali. The Joint Applicants got married on 21st September 2013 at Cross Roads Fellowship. They have, however, not been blessed with biological children of their own. The prospective adoptive child is of the African race and was received into their care on 5th November 2022. They deposed that they are of good conduct, with no criminal record, and are not homosexuals or lesbians. The Joint Applicants propose to call the adoptive child, JSS, if the adoption application is allowed.

3. The Joint Applicants attached various documents, which I have perused and considered when making my determination.

4. The Joint Applicants filed the Chamber Summons dated 29th May 2023 vide which they sought to have Mr. JFOM appointment as a guardian-ad-litem. The said application was canvassed before me on 27th September 2023. After hearing the oral testimony of the said JFOM, I appointed him as a guardian ad litem. I directed that he should file the necessary statutory report within 30 days. I made a similar order in respect of the Director of Children Services, Mombasa.

5. The circumstances under which the child was found are given in the report of the Change Trust dated 5th October 2022. Briefly, it is that the child was abandoned by the roadside in an area known as Corner Village within Athi River Township. He was found in a folded shopping bag by two women who took him to the Chief of the locality. The baby was then taken to Mavoko Level 4 Hospital for a medical checkup. The incident was reported to the Athi River Police Station via OB No. 78/17/03/2022. He was admitted to Mahali Pa Maisha on 17th March, 2022. On 24th March 2022, he was committed to the said home vide protection & care cause No. E006 of 2022. No one came to claim him.

6. The case committee of the Change Trust, in its sitting on 5th October 2022, considered the case and declared JJ free for adoption. The certificate declaring the child free for adoption has serial number 00556 and was issued by the Change Trust. The said adoption society appraised the Joint Applicants and wrote a report, which I have perused. The applicants are aged 38 and 40, respectively. They have good incomes, live in a secure neighbourhood, and are healthy.

7. The matter proceeded before me on 20th and 27th November 2022. A total of 6 witnesses testified. The first witness was Ephraim Muteru Njama, the Managing Trustee of the Change Trust. He recommended that the application be allowed. The 1st and 2nd Applicants were the second and third witnesses. Both testified that they understand what adoption entails. They both know that it is permanent and irreversible. They also testified that the child had bonded well with them.

8. The guardian ad litem was the fourth witness. In his report and also during testimony, he supported the application by the joint applicants. The fifth witness is the brother of the second applicant, Mr. JKW. Mr. W is the proposed legal guardian. He testified that he resides in Nairobi and works for the [Particulars Withheld]. He expressed his willingness to be the legal guardian and testified that his wife was supportive and had given her consent. The last witness was Ms Louisa Kemuma, a children's officer in the Directorate of Children Services, Regional Office based in Mombasa. She testified that they assessed the joint applicants during a home visit on 4th November 2023 and filed a report on 26th November 2023. The report stated that the Joint Applicants had bonded well with the proposed adoptive child. She testified that the applicants met all the legal requirements. Consequently, she recommended the adoption.

9. I have considered the application herein, the documents in support thereof and evidence of the various witnesses. The issues that emerge for determination by me are whether the baby is available for adoption, whether the applicants are fit to adopt the baby and most importantly, whether the adoption is in the best of the child.

10. I have already set out the circumstances under which the child was found. The child was abandoned by the mother at birth. Nobody has come forward to claim the child. The need for consent pursuant to sections 186(8) and 187 of the Children Act, 2022 is therefore dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”

11. Regarding the baby’s nationality, it is clear from the evidence adduced that he was found abandoned on the day of his birth. Article 14(4) of the Constitution states that a child who is less than eight years of age and whose nationality and parents are not known is presumed to be a Kenyan citizen by birth. In view of this provision, the child herein is presumed to be a Kenyan citizen by birth.

12. In terms of age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby pursuant to Section 184 (b) of the Children Act, 2022. Further, Section 185(1) states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.

13. Concerning the Joint Applicants’ suitability, they are Kenyan citizens aged 38 and 40 years, respectively, which places them under the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. The applicants have been described as financially stable. They have no criminal record. Since the placement of the minor into their custody, the child has fully bonded with them. They also understand the consequences of adoption and know that once an adoption order is made, it is permanent.

14. Consequently, I have no doubt that they have met the necessary requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bringing up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”

15. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.

16. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”

17. The child herein was found abandoned. He, therefore, needs basic necessities like food, shelter, education and clothing. He has fully integrated with the applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated: -“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”

18. Based on the foregoing, I find and hold that the adoption application has merits. Consequently, I issue the following orders:-1. The child, Baby JJ, is hereby declared a Kenya Citizen by birth pursuant to Article 14(4) of the Constitution of Kenya, 2010 and Section 7(1) of the Children Act, 2022;2. The requirement of the consent of the biological parents of the child to the adoption under section 186 of the Children Act, 2022 is hereby dispensed with;3. The Joint Applicants, PSS and MWW, are hereby authorized to adopt Baby JJ, who shall henceforth be called JSS;4. JKW is hereby appointed as the legal guardian of Baby JJ, now known as JSS, in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of Baby JJ, now known as JSS, before he attains the age of majority;5. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the estimated date of birth of the child as being 16th March 2020 in the Adopted Children Register; and6. The guardian-ad-litem, JFOM, is hereby discharged.Orders accordingly.

DELIVERED, DATED, AND SIGNED ON THE 5TH DAY OF DECEMBER 2023 AT MOMBASA VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of: -Ms. Ngugi holding brief for Ms. Katisya for the Joint Applicants; andArthur - Court Assistant