[2023] KEHC 19697 (KLR)

In re Baby MP (Minor) (Adoption Cause E024 of 2021) [2023] KEHC 19697 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19697 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E024 of 2021

MW Muigai, J

June 30, 2023

IN THE MATTER OF CHILDREN’S ACT, 2022 AND IN THE MATTER OF BABY MP (Minor)

In the matter of

IMN

1st Applicant

IMK

2nd Applicant

Judgment

1. The Applicants herein, IMN ID No xxxxxxxx Mobile No 0729xxxxxx and IMK ID No xxxxxxxx – Mobile No 0723xxxxxx (“the Applicants”) sought by their application to be granted orders by this Court to adopt Baby MP (hereafter “the child”).

2. Vide Originating Summons application dated October 29, 2021 the Applicants sought the following orders; that the requirements of Section 186 (8) (a) of the Children Act, 2022 be waived as provided for under Section 187 (1) of the Act; that the Applicants be authorized to adopt baby MP and the child shall thereafter be known as CMN; that the child’s date and place of birth be declared to be the April 11, 2020 at Machakos; that NMK be appointed as the Legal Guardian of the child; that the Registrar General be directed to make the appropriate entries in the Adopted Children Register.

3. The Applicants further sought that JN be appointed as Guardian Ad Litem in this cause and be directed to file a report on the safety of the child in the Applicants custody and that the Department of Children Services, Machakos be directed to investigate the Applicants’ fitness to adopt or otherwise and file a report in respect thereof.

4. JN was appointed by this Court as Guardian Ad Litem on 6/12/2021.

5. The Applicants herein are husband and wife and were married on 31st December, 2016 vide marriage certificate Serial No xxxxxx. IMN was previously married. The said marriage was later dissolved in the year 1999. There were two children born from the said marriage namely, JMN born on September 30, 1994 and MMN born on November 28, 1996. The two adult children who currently study, work and reside in Norway have consented to the adoption of the child. The Applicants union has not been blessed with children. IMN the 1st Applicant works as a Sports Officer with Machakos County Government while Immaculate is a Counselling Psychologist at African Brotherhood Church. The Applicants annexed the following documents in support of their application; Copies of the Applicants ID Cards

Church Recommendation letter by Rev. Hellen Kyengo of Africa Brotherhood Church.

Marriage Certificate Serial No xxxxxx

Letter of consent by the 1st applicants biological children and copies of their ID Cards

Applicants financial statements

Applicants Medical Reports

Police Clearance Certificates

Referee information

Letters of support from members of family in support of the applicants adoption application

Legal Guardians letter of Consent

Inquiry form on the Prospective Adopter(s)

A comprehensive Home study Report

Care Agreement form

6. The child (MP) who is the subject of the present adoption proceedings was presumably born on April 11, 2020. The child was found abandoned at a farm near Mutituni Health Centre, Machakos County. The abandonment was reported to Mutituni Police Post and booked under OB. No 5/11/4/2020. The Police Officers rescued the baby and took her to Machakos Level 5 Hospital where the child was admitted vide Hospital IP No XXX and she was given the name MP. The Machakos Medical Superintendent vide letter dated May 12, 2020 notified the Children office of the child’s abandonment and requested for relocation of the child into a Children Charitable Institute pending investigations into the matter.

7. The Machakos Sub-County Children Officer vide letter dated May 12, 2020 referred the child for release to XXX Institute. The child was committed into the Home on May 19, 2020 for a period of three years by the Children Court at Machakos vide Committal Order given in Protection & Care Case No 28 of 2020.

8. A final Police letter from Machakos Police Station dated December 18, 2020 stated that tracing the child’s relatives was fruitless and no one has come forward to claim the child. The Adoption Society made enquiries from the Home and confirmed that they had not heard anything further concerning the child since her abandonment. The minor was declared free for adoption by the Case Committee of the Adoption Society Services in a meeting held on April 30, 2021 vide a Certificate of Freeing a Child for Adoption Serial No 487.

9. The following documents were availed from xxx for Baby MP.1. Initial police letter, dated May 26, 20202. Admission form to Machakos Level 5 Hospital3. Medical Superintendent notifying letter to the Children officer about the child abandoned.4. Children Officer Letter requesting for the child’ committal to the XXX.5. Committal order to XXX, dated May 19, 2020 Protection and Care Case No 28/2020. 6.Final police letter dated December 18, 2020. 7.Certificate declaring child free for adoption No487.

8. Pursuant to Section 187 (2) (1) of the Children Act2022, Buckner Kenya Adoption Society 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 Services, and this report was similarly in favor of the proposed adoption.

9. The guardian ad litem, JN also filed the statutory report in which he noted that the proposed adoption of the child by the Applicants would be in the best interests of the child.

10. The Buckner Kenya Adoption Society filed their Social Inquiry and Home Study Report dated November 30, 2021. Mary Kamiri, a Social worker for the Adoption Society appeared in Court on April 20, 2023 in respect of these Adoption proceedings. She told the Court that the child was found by police officers who took her to Machakos Level 5 Hospital where she was admitted and named MP. The child was discharged form hospital and placed in the XXX under Care and Protection Case No 28 of 2020.

11. The Agency report contains family and professional background information of the Child’s Adoptive Parents. According to the report the Applicants made a joint Adoption Application to Buckner Adoption Society on June 11, 2020 applying to be placed with a female child aged one (1) year and below. The Applicants were taken through the relevant interviews, a home assessment was carried out as well as the pre–placement counselling. The Applicants were found eligible. A Case Committee sitting on April 30, 2021 considered their application and approved them as adoptive parents. The Applicants were thus placed with baby MP from the Village of Home Children Home on May 7, 2021 and have been fostering her since then.

12. Prior to the placement, baby MP was declared free for adoption by Buckner Kenya Adoption Society Case Committee on April 30, 2021 where a Freeing Certificate Serial Number 487 was issued in compliance to Section 187 (2) (1) of the Children Act2022. The child was placed with the Applicants on 17th May, 2021.

13. The Applicants are legally married vide Certificate No xxxxxx. The Applicants do not have biological children. However, the 1st Applicant (IMN Munyao) has 2 biological from the first marriage – JMN – 27 years and MMN 25 years. He was given the custody of the children after he divorced his first wife. The children live in Norway but they have maintained contact with their father. The Applicants motivation to adopt a child is their love for children. They have not been able to sire a biological child due to medical challenges.

14. The Applicants live in their own 4 bedroomed house at Syokimau with all the necessary amenities. The Applicants also live with their aged mother and a care giver. The Applicants have fulfilled all the legal requirements to adopt to wit; being married for over three years and not over 65 years of age.

15. On observation during the interview sessions and prior meetings it was observed that the Applicants and the minor have bonded well with the minor. The Adoption Society recommended Adoption.

16. The Director of Children Services through a Report dated January 27, 2022 in respect of the proposed adoption of the child by the Applicants was prepared by Emily Kimanzi Machakos Sub County Children Officer. Emily Kimanzi appeared in Court on April 20, 2023 in respect of these proceedings. She told the Court that she visited the Applicants home and found that the child is well settled.

17. The report contains family background information of the Child’s Adoptive Parents. During the home visit it was observed that the Applicants have bonded well with the minor and they live comfortably in their own house and have the required amenities. The Applicants have no criminal record. The Applicants are socially, economically and financially able to take care of the child. The Applicants motivation to adoption is to assist a needy child and give the child love and all her other needs. The 1st Applicant biological children have accepted the child as part of the family and are excited to have a little sister. The Applicants extended family are in support of these adoption. The adoption was recommended.

18. The Guardian ad Litem, JN filed his Report dated January 17, 2022 in support of these Adoption proceedings. He stated that he visited the family and observed that the minor has interacted well with the Applicants. The Applicants have provided the child with a warm, comfortable and secure home. The child share a strong bond and refers the Applicants as dad and mom. The Guardian Ad litem recommended the adoption.

19. The Legal Guardians NMK of ID No XXX filed her Affidavit of proposed Legal Guardian sworn on August 27, 2021. Noel is a sister in law and sister to the 1st and 2nd Applicants respectively. She stated that she understands her roles and duties as a Legal Guardian and that she is expected to take over parental responsibility over the minor in case of any eventuality. She recommended the adoption.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, IMN and IMK are hereby allowed to adopt Baby MP.3. Henceforth, the child shall be known as CMN .4. The child’s date of birth is April 11, 2020 and the place of birth shall be Machakos.5. The child is a Kenya Citizen by birth and entitled to all rights of a Kenyan citizen.6. NMK shall be the Legal Guardian of the child should such eventuality arise.7. This Court directs the Registrar General to duly enter this order in the Adoption Register.8. That the Directorate of Children Services to carry out supervision on the said adoption and file a report on the ongoing safety/security of the child within one year of the Adoption in the best interest of the child under Section 8 of Children Act 2022. 9.The guardian ad litem is hereby discharged.It is so ordered.DELIVERED SIGNED & DATED IN OPEN COURT AT MACHAKOS THIS 30THDAY OF JUNE, 2023 (PHYSICAL/VIRTUAL CONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OF:MS KIMENYI - FOR THE APPLICANTSGEOFFREY/PATRICK- COURT ASSISTANT(S)