[2022] KEHC 14105 (KLR)

In re Baby M (Minor) (Adoption Cause E013 of 2016) [2022] KEHC 14105 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14105 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E013 of 2016

MW Muigai, J

October 13, 2022

IN THE MATTER OF THE CHILDREN ACT, 2001

AND

IN THE MATTER OF BABY M (MINOR) BMK AMM(Deceased) EM............................................APPLICANTS

Judgment

1. The applicants, BMK and AMM (“the applicants”) sought by their originating summons application of March 18, 2016 to be allowed by this court to adopt baby M (hereafter “the child”). The 1st applicant is a businessman while the 2nd applicant passed on when the adoption process was ongoing. The applicants have three (3) biological children; CMM, ENM and CM. Their desire to adopt and have a child of the opposite gender as all their children are female. The female applicant was diagnosed with diabetes when she was expecting her third child. Due to the condition, the pregnancy got complicated and took a toll on her health. In view of that experience, she was advised not to bear more children.

2. The child who is the subject of the present adoption proceedings was reportedly found abandoned on November 2, 2012 in Wamba, Samburu East in Samburu county when she was approximately 4 days old by a good samaritan named Mrs MN. She remained with the child until November 24, 2012 when she reported the matter to Maralal police station vide OB xxxx and the child was handed over to Mr Henry Bigoro, the then district children’s officer in Maralal on the same day.

3. As tracing of the child’s family and kin progressed, he remained in the care of missionaries of Charity Maralal, Maria Mfariji Home, where he had been referred by the children’s office within Maralal, Samburu county pursuant to a letter dated January 28, 2013. The child was later referred to missionaries of charity, Huruma, Nairobi County for provision of care and protection in a better facility through the children’s office in Starehe district. This was done in the Children’s court in Nairobi vide Protection and Care Case 116 of 2013.

4. The Child Welfare Society of Kenya (CWSK) undertook tracing of the child’s family through media and physical tracing as per section 177(7) (d) of the Children’s Act, 2001. The Good Samaritan, Mrs Maryline Neripe has been contacted and she informed CWSK that she has not heard anyone claiming the said child and does not know the child’s family or kin. CWSK conducted media tracing of the child on Sunday Nation Publications dated May 16, 2017, July 23, 2017 and July 7, 2019. The child was declared free for adoption pursuant to section 159 (1) (a) (i) of the Children’s Act 2001by CWSK vide Certificate declaring a child free for adoption of May 26, 2014 serial no 0942 issued.

5. In an ex-parte chamber summons application filed on 18th march, 2016, the applicant sought among other orders, orders from this court that Morris Munyao John be appointed as the child’s guardian ad litem, and that the director of children’s services to investigate the suitability and fitness of the applicant to adopt the child and submit a report. Morris Munyao John was appointed guardian ad litemon January 25, 2017 and he filed affidavit of fitness and consent on March 18, 2016. The guardian ad litem filed report on July 4, 2022.

6. The applicants further sought an order that upon adoption the child be known as MM.

7. The applicants also sought to have the court appoint JKK brother to BMK as legal guardian of the child and signed consent/affidavit on March 18, 2016.

8. Pursuant to section 156(1) of the Children Act, Kenya children’s homes, the relevant adoption society, prepared and filed in court a favorable report in respect of the proposed adoption of the child by the applicants. Another report in respect of the proposed adoption of the child by the applicants was prepared by the director of children’s services, and this report was similarly in favor of the proposed adoption. The guardian ad litem, Morris Munyao, also filed the statutory report pursuant to section 160(2) of the Children Act in which he noted that the proposed adoption of the child by the applicants would be in the best interests of the child.

9. The director of children services through a report dated September 7, 2022 in respect of the proposed adoption of the child by the applicants was prepared by county co-ordinator Makueni county children’s officer the report contains family and professional background information of the child’s adoptive parents. The applicants were married in the year 2003 and were blessed with three daughters. The adoptive mother in these proceedings passed on before the adoption process was concluded leaving the adoptive potential father as the sole applicant in this matter. The adoptive father is financial able to take care of the child. He lives in a permanent three bedroomed bungalow. The adoptive parent and his children have fully bonded with the child and the child refers to the applicant as his father. The directorate recommends the adoption. The child in this matter has been declared free for adoption by a registered Adoption Agency.

10. The child welfare society of kenya adoption services filed their report dated December 21, 2020. On July 6, 2022 Ms Antonina Mutheu a social worker from the agency appeared in court and confirmed that the child subject of these proceedings was declared free for adoption on May 26, 2014 and the declaration certificate is serial no xxxx. The child subject of these proceedings was. The adoptive parents have been blessed with three biological children namely – Catherine Mbeke, Emily Nthenya and Cynthia Mwende. The children are aware and have provided both verbal and written consents. Since the child was placed with the applicants he had bonded well with the rest of the applicant’s children who recognize him as a younger brother. The child too is settled and relates with the older children as typical siblings.

11. The applicants reported that their main motivation towards adoption is to have a child of the opposite gender being that all their biological children are female. In addition the female applicant (now deceased) was diagnosed with diabetes. The applicants expressed their understanding of the right by an adopted child to inherit their property and are committed to responsibly undertake to have the child inherit from them without any discrimination.

12. During the continuous assessments/visits it was observed that the applicants have nurtured a trusting relations with the child, provided him a suitable environment to grow and develop accordingly. The relevant home visits and follow-ups were done and the final follow up session was conducted the agency and recommended the adoption.

13. The guardian ad litem, Morris Munyao John has interacted with the adoptive parents for at least 20 years. They attend the same church. He knows their lifestyle. They own a modern rural home with a shamba and livestock and also own their residence and other properties in and outside town. That the applicants have maintained baby Moses like their other biological children; that the other children loves baby Moses like their own. On observation, the child has bonded well with the applicant as well as the entire family the guardian ad litem fully recommended the adoption.

14. All the statutory reports that have been filed in respect of the proposed adoption of the child by the applicant have recommended that this court allows the sole applicant to adopt the child. This court has evaluated the facts of this adoption. this is a local adoption. It is evident that the applicant has fulfilled all the legal requirements relative to the adoption of the child.

15. The home visits by the guardian ad litem, the adoption society and the director of the children’s services established that the applicants are financially and socially stable and have emotional capability to provide for the upkeep and education of the child and give parental care. This court observed the applicants with the child in court and it was evident that in the period that the applicant has had the custody of the child, the child has bonded well. the child considers the applicants to be his parents.

DISPOSITION 1. On the basis of a careful examination of the documents presented before this court as well as the observations made therein, this court has formed the opinion that it would be in the best interest of the child to be adopted by the applicant. Hence, this court allows the applicant’s application.

2. The applicants, BMK is hereby allowed to adopt baby M. Henceforth, the child shall be known as MM.

3. The child’s date of birth is 2ND November, 2012 and the place of birth shall be Samburu county.

4. The child is a Kenya citizen by birth and entitled to all rights of a Kenyan citizen.

5. JKK shall be the legal guardian of the child should such eventuality arise.

6. This court directs the registrar general to duly enter this order in the adoption register.

7. The guardian ad litem is hereby discharged.

It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS THIS 13THDAY OF OCTOBER, 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE