[2023] KEHC 25508 (KLR)

In re Baby LJ (A Child) (Adoption Cause E011 of 2023) [2023] KEHC 25508 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25508 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause E011 of 2023

G Mutai, J

November 15, 2023

IN THE MATTER OF THE CHILDREN ACT, NO 29 OF 2022 AND IN THE MATTER OF BABY LIAM JABALI (A CHILD) AND IN THE MATTER OF AN APPLICATION FOR ORDERS OF ADOPTION OF BABY LJ (A CHILD) BY OAS AND ZRY (THE JOINT APPLICANTS)

Between

OSM

1st Applicant

ZRY

2nd Applicant

and

The Change Trust

Respondent

Judgment

Introduction 1. Vide an Originating Summons dated May 15, 2023 and filed on June 6, 2023 expressed to be brought under sections 7, 8, 11, 183, 184, 185, 186, 187, 188, 189, 194, 195, 200, 201, 202 and 203 of the Children Act, 2022 and article 14(4) of the Constitution of Kenya , 2010 the joint applicants sought the following orders: -1. Pursuant to article 14(4) of the Constitution of Kenya 2010 and section 7 of the Children Act, No 29 of 2022, this honourable Court be pleased to declare the child Baby LJ as a Kenyan citizen by birth;2. Pursuant to the provision of section 187 of the Children Act, No. 29 of 2022, this honourable court be pleased to dispense with the requirements of the consent to the adoption as required by the provisions of section 187 of the Children Act No. 29 of 2022;3. The applicants OSM and ZRY be authorized to adopt BabyLJ, a child;4. Upon the making of the adoption order, the child be known as TOM;5. Upon the making of the adoption order RSM be appointed as guardian of the child as provided for by the provisions of section 188 of the Children Act, No 29 of 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 July 15, 2017 in the Adopted Children Register as provided for by section 170 of the Children Act, No 29 of 2001; and7. The costs of this application be costs in the cause.

2. In the statement in support of the application, the joint applicants, who are both Kenyan adults of the African race, stated that they were born on July 10, 1973 and 1976 respectively. They got married on December 29, 2012 and have no biological children of their own. They have previously adopted a child now known asTOM vide Adoption Cause No. 6 of 2018; In the Matter of Baby J also known as BJW (A child). The judgment allowing the application was delivered by this Court (per Onyiego, J) on March 4, 2021. The joint applicants averred that they are both Muslims, are of sound mind, and have no criminal record. The child was delivered to their care and possession on May 31, 2018 and has been with them ever since. They propose to rename the child as TOM should the adoption application be successful.

3. They attached the following documents to their application: -1. Photocopies of their national identity cards;2. Their marriage certificate in respect of an Islamic marriage celebrated on December 21, 2012;3. Adoption order made in respect of Baby TOM;4. Foster care Agreement;5. Police clearance certificates;6. Consent by the mother to the adoption;7. Certificate to declare a child free for adoption; and8. Child freeing summary prepared by the change Trust, among other documents.

4. The joint applicants also filed a Chamber Summons dated May 15, 2023 vide which they sought to have Mr KRK of Mombasa appointed as a guardian-ad-litem in respect of this adoption cause and also for an order that the guardian-ad-litem so appointed and the Director of Children Services do prepare the relevant statutory reports within 14 days of the date the order is made.

5. The child, the subject of these proceedings, was born on 15th July 2017 at Plains View Nursing Home, Nairobi. His birth mother is PWN. The child’s father is unknown. The said mother gave away the child for adoption as she was unprepared to have the child and felt that she was incapable of raising him. She thus approached the Change Trust on July 28, 2017 and expressed her desire to give him up for adoption. She executed the initial consent on July 28, 2017 and handed over the child. The child was admitted to New Life Home Trust on July 28, 2017. On November 17, 2017, the baby was committed to the care and protection of New Life Home Trust through the Nairobi Children Court Care and Protection Cause No 563 of 2017. She signed the legal consent on February 22, 2018, confirming that the child could be offered for adoption. The child was declared free for adoption on July 15, 2022, vide serial number 00XXX.

Court Proceedings 6. The Chamber Summons application was heard on July 6, 2023. On the said date, the proposed guardian-ad-litem, KRK, testified under oath. Being satisfied that he had the necessary qualifications, I appointed him as the guardian-ad-litem. I ordered that both he and the Director of Children Services, Kwale County do prepare the requisite statutory reports within 30 days of the said date. I also fixed the matter for hearing on September 18, 2023.

7. On September 18, 2023, the matter came up for hearing. The adoption cause was also heard on 11th October and November 8, 2023. A total of 6 witnesses testified. All the witnesses supported the case of the joint applicants.

8. The 2nd applicant was the first witness she testified. She testified that they were given custody of Baby LJ on May 18, 2018. At the time, he was around eight months old. Baby LJ is now six years old and attends Gakale Academy. They have another adopted child, a daughter now aged 11. The 2nd Applicant testified that she understood that once adopted, Baby LJ would have a right to inherit their property. She expressed her readiness to take care of him. The proposed legal guardian was the second witness. He testified that he was previously an employee of Kenya Ports Authority but was now retired. He is the brother of the 1st applicant. He expressed his readiness to take care of the child should anything happen to the co-applicants. Muteru Njama of the Change Trust was the 3rd witness Mr. Njama is the Managing Trustee of the adoption society that processed the adoption. He supported the proposed adoption.

9. The 1st applicant was the 4th witness. He is the husband of the 2nd applicant. He is a driver/tour guide. He expressed his readiness to adopt the child. He testified that even in the event he separated from his wife, he would take care of the child. The child, he stated, would be brought up as a Muslim and be named TOM, if the adoption application was successful. The guardian-ad-litem KRK was the 5th witness. He presented his report vide which he supported the adoption. He testified that BabyLJ was inseparable from his adoptive sister Tamara. The last witness was Zephaniah Apoko of the Kwale County Directive of Children Services. He testified that he visited the home of the joint applicants on October 9, 2023. The children's department had no objection to the adoption on the grounds that the adoption would be in the best interest of the child.

Analysis and Determination 10. I have considered the application herein, the documents in support and evidence of the various witnesses and 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.

11. I have already set out the circumstances under which the child was found. The child was given up for adoption by the birth mother as she lacked the means to take care of him. The identity of the birth father is unknown, as are his whereabouts. I have seen the documents vide which she did so.

12. Regarding the baby’s nationality, it is clear from the evidence adduced that he is the son of a Kenyan national. In view of this, I find and hold that the child herein is a Kenyan citizen by birth.

13. 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) does recognize any child who is resident in Kenya, whether born in Kenya or not, to be eligible for adoption. I have no doubt the child is fit for adoption.

14. Concerning the joint applicants’ suitability, they are Kenyan citizens aged 50 and 47 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. They appreciate the role of a parent and admit they will treat the baby like their biological child.

15. Consequently, I do not 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 bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”

16. 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.

17. 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.”

18. The child herein was given up for adoption by the birth mother. He, therefore, needs basic necessities like food, shelter, education and clothing. He has fully integrated with the applicants. It is obviously in the best interests of the child that this adoption application be allowed. I am guided by the case ofIn 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 best interests of the child are paramount.”

Disposition 19. Based on the foregoing, the orders that commenced themselves are as follows: -1. I declare Baby LJ (a child) to be a Kenyan citizen by birth;2. I authorize OSM and ZRY to adopt Baby LJ (a child). BabyLJ shall henceforth be known as TOM;3. I appoint RSM to be the legal guardian of the child in the event the joint applicants die or are otherwise unable to take care of him before he attains the age of majority;4. I direct the Registrar General to make an entire recording of the adoption order herein and the estimated date of birth of the child as being July 15, 2017 in the adopted children register;5. I discharge KRK from his position as the guardian ad litem of TOM; and6. Costs shall be in the cause.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 15TH DAY OF NOVEMBER 2023 AT MOMBASA VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of: -Mr. Njoroge for the joint applicants; and