[2022] KEHC 14713 (KLR)

In re Baby M (Child) (Adoption Cause E004 of 2022) [2022] KEHC 14713 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14713 (KLR)

Republic of Kenya

In the High Court at Kiambu

Adoption Cause E004 of 2022

MM Kasango, J

November 3, 2022

IN THE MATTER OF THE CHILDREN ACT IN THE MATTER OF THE ADOPTION OF BABY M (CHILD)

In the matter of

DWM

Applicant

Judgment

1. Baby M who is the subject of the adoption application was on 4th July, 2014 found abandoned at [particulars withheld], Nairobi County. The baby was approximately 2 months old when he was abandoned. The matter was reported by a good Samaritan at Shauri Moyo Police station and was recorded in the OB as No.xxxx. The police directed the good Samaritan to take the baby to Pumwani Maternity hospital. On his discharge the baby was taken by Child Welfare Society of Kenya (CWSK) to Imani Children’s home. Makadara Magistrate’s court ordered in protection and care case NO. xxxx the baby to be as committed to the care/custody of Imani Children’s Home. Both Pumwani Maternity Hospital and Shauri Moyo police station wrote letters confirming that no one had approached the claiming the baby. CWSK placed advertisements in newspapers on 19th October, 2014, 8th March, 2015 and 10th May, 2015 seeking report of the family of the baby but CWSK through the report before court stated that the media announcement was unsuccessful and the baby was unclaimed. CWSK therefore stated that the baby was presumed abandoned by his parents. CWSK itself made various follow-ups with the police and the hospital but those efforts were fruitless to identifying the parent/s of the baby. CWSK concluded in that report thus:-“… we declare the child available for adoption… Through adoption, Baby M will be placed in permanent alternative family care and will be accorded parental attention. This will enable him grow up in a family setting that will provide him a sense of identity, love and belonging.”

2. The baby was declared free for adoption by CWSK on 20th January, 2016. The baby was placed with prospective adoptive parents on 27th January, 2017. The prospective adoptive parents are a married couple. MNW the wife passed away in June, 2021 before the conclusion of this matter. In that marriage, DWWM the husband and his deceased wife were blessed with a daughter, who is now 21 years old. The deceased suffered with a weaken heart which led to the doctors advising the couple that the deceased wife should not conceive because another conception would lead to her further health complications. On the wife passing away, the husband decided to lodge the application for this adoption. He said before his wife passed away, they had intended to lodge the adoption together.

3. The Children Officer Thika West sub county presented a preport in this matter dated 27th July, 2022. It shows the baby is now 8 years old. The applicant and the baby live in Thika landless where the family has its own home. The report shows the applicant is financially able to take care of the baby.

4. There is a strong bond that has grown between the applicant’s biological daughter and the baby. The biological daughter was seen by the children officer playing with the baby during home visits. That daughter according to the report ensures the baby has a good breakfast and while attends school, she ensures he has snacks for school. On his return in the evening, she assists the baby with homework and also ensures he sleeps early in order to have a good night sleep.

5. CWSK in its report noted that the baby has bonded with his prospective adoptive parents. When the baby was placed in their home, in her lifetime the deceased’s wife resigned her teaching job in order to concentrate in the care of the baby. The report noted that the decision of deceased’s wife to retire benefited the baby in his development.

6. The Children Act 2022 requires the court to be satisfied before making an adoption order that such an order would be in the best interest of the child: See Section 194(1)(c). indeed, this is also what the Constitution under Article 53(2) states:-“A child’s best interest are paramount importance in every matter concerning the child.”

7. Further Section 186(4) of the Children Act 2022 provides:-“(4)The court shall not make an adoption order in favour of a sole male applicant unless the applicant is a blood relative of the child.”

8. In this case since the female applicant passed away last year, the male applicant is the sole surviving applicant to the adoption application. The provision of Section 186(4) of the Children Act 2022 goes against the tenet of the Constitution which forbids discrimination, on any ground. That section discriminates a sole male applicant for adoption. I highly doubt the Constitutional validity of that Section in the light of Article 27(1) and (3) which provides:-“(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)…(3)women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social sphere.”

9. The Section 186(4) of the Children Act 2022 fails constitutional test. I will therefore be guided by the principle of the best interest of the child in considering this adoption.

10. The baby has been under the care of the male applicant and his deceased wife, now for 6 years. The baby is now 8 years old. The deceased wife died a year ago. In other words, the baby since he was abandoned shortly after birth knows of no other family and parents except those he has in the applicant his deceased wife and the biological daughter. The baby has developed an attachment with his prospective adoptive family and in my view, it would be too disruptive to the baby’s future development if he has to be returned to the children’s home now that the female applicant has died leaving only the male applicant.

11. Such a move would be traumatic and would not be in the best interest of the child. This Court has a duty to preserve and protect the relationships that have developed. The concern of this Court is the best interest of the child. I have no doubt and the reports clearly show that the applicant would be capable of bringing up and nurturing the baby. Adoption order will be beneficiary to the baby. The alternative to decline the adoption will not be in the best interest of the child for it will lead to the child being returned to a children’s home. Applying the best interest of the child principle I am persuaded that the adoption order should be granted as prayed.

12. The applicant’s biological daughter has given her written consent to the adoption.

13. The judgment of the court is as follows:-a.The applicant DWM is hereby authorized to adopt by M who shall henceforth be renamed as DM.b.HWM is hereby appointed as legal guardian of the child and consequently the guardian ad litem is discharged.c.The baby’s date and place of birth is declared 4th May 2014, Nairobi county.d.The baby is presumed to be Kenyan citizen.e.That the Registrar General is directed to make the appropriate entries in the Adopted Children’s Register.f.That the consent to this adoption of the biological parent/s or guardian is hereby dispensed with.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF NOVEMBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- MouriceApplicant in person:CourtJudgment delivered virtually,MARY KASANGOJUDGE