[2017] KEHC 3123 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 104 OF 2016 (OS)

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001

IN THE MATTER OF ADOPTION OF BABY MMM

BY

J O AND A M (APPLICANTS)

JUDGMENT

1. The Applicants JO and AM have lived together since 1982. They later solemnized their union on 16th December, 2012 at St. Raphael Catholic Church Nairobi, and were issued with certificate No. [particulars withheld]. They have three children of their own, namely;

(i) Z M aged 29 years;

(ii) JM aged 27 years;

(iii) NG aged 26 years.

2. They wish to adopt the child known as Baby M a minor of male sex, through the Originating Summons dated 10th August, 2016. From the pleadings the court gathers that JO works at the National Police Service as a Police driver, while AM is a farmer. They reside in Kisii and both profess the Christians faith.

3. Records indicate that the child in this matter is estimated to have been born on 8th September 2003. He was found having been abandoned at infancy, within Kiambu village by a Good Samaritan on 9th September, 2003. The matter was booked at the Buruburu Police Station via OB No. [particulars withheld] the same day.

4. The child was on 9th September, 2003 admitted to Missionaries of Charity, Huruma for care and protection. On 17th August 2005 the child was officially committed to the same home by the Senior Resident Magistrate Children’s court, Nairobi vide Protection and Care Case No. 144 of 2005.

5. A letter dated 15th June 2005 by Buruburu Police Station confirmed that the biological parents of the child were not traced, nor did anyone come forward to claim the child. The child was declared free for adoption on 12th March, 2008 by the Kenya children’s Home Adoption Society vide certificate No. [particulars withheld]. He was released into the custody of the Applicants for mandatory foster care pending adoption on 16th January, 2008, upon their signing a Foster Care Agreement dated the same day. Since then he has been in the continuous custody and care of the Applicants.

6. Prior to the hearing of the adoption application, Kenya Children’s Adoption Society an adoption society prepared and filed a report in court. The Adoption Society, guardian ad litem and the Director of Children’s Services have all made home visits and established that the Applicants are financially and emotionally capable of providing for the up keep and education of the child.

7. The Director of Children’s Services also filed a report dated 24th March, 2017 recommending the adoption for reasons that the child stands to gain the perfect alternative family. Further that he has flourished under the care of the prospective adoptive parents with whom he has bonded. The guardian ad litem, WNM also filed a report that was favourable and recommended the adoption of the child by the Applicants.

8. It is important to note that, the orders sought by the Applicants relate to a child. In law, in any matter concerning a child, the best interests of a child are paramount. Article 53(2)of theConstitution provides the guiding principle on this question as follows:

“A child’s best interests are of paramount importance in every matter concerning the child.”

The other pertinent law is the Children Act No. 8of 2001 and in particular Section 4(3) thereof.

9. The court observes that this is a local adoption and the Applicants, in the opinion of the court have fulfilled the requirements for local adoption under the Children Act, 2001. They have proved during the placement period prior to adoption that they are capable of taking on the challenge of raising the child in this matter. The child was in court during the hearing and appeared to have bonded well with the Applicants and his sibling. He was jovial and related well with the Applicants and their three biological daughters, who have since consented to the adoption of the child and the consequences of the adoption thereto. The child was observed to be in good health and in good spirits and had flourished under the care of the Applicants.

10. Secondly, the Applicants meet the social and financial parameters that are considered relevant to their taking on parental responsibility and custody of the child in this matter, on a permanent basis as would be conferred by the adoption order sought.

11. From the foregoing, this court has formed the opinion that it is in the best interest of the child to be adopted by the Applicants. Reasons wherefore, the court allows the prayers sought in the Originating Summons dated 10th August, 2016 and order as follows:

i. The Applicants, JO and AM are hereby allowed to adopt Baby M who shall henceforth be known as MMO.

ii. His date of birth shall be presumed to be 8th September, 2003.

iii. He is presumed to have been born in Kenya in accordance with Article 14 (3)of theConstitution, and the place of birth shall be Kiambu.

iv. DN (brother to the first Applicant) is hereby appointed as the legal guardian of the child in the event that the Applicants die or are incapacitated by ill-health.

v. The Registrar General is directed to enter this order in the Adoption Register.

vi. The Director of Immigration is hereby authorised to issue the child with a Kenyan passport.

vii.The guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATED and DELIVERED in open court this 5th day of October, 2017.

………………

L. A. ACHODE

JUDGE