[2022] KEHC 17218 (KLR)

In re baby MT (Minor) (Adoption Cause 164 of 2019) [2022] KEHC 17218 (KLR) (Family) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17218 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause 164 of 2019

EKO Ogola, J

December 15, 2022

IN THE MATTER OF THE CHILDREN’S ACT, 2001 AND IN THE MATTER OF THE ADOPTION OF BABY MT (MINOR) AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY DNM AND MWN

Judgment

1. Before this Court is the Originating Summons dated November 26, 2019 by which the Applicants DNM and MWN seek the following orders:-a.That pursuant to Article 14(4) of the Constitution of Kenya, and Section 11 of the Children’s Act, this Honorable Court be pleased to declare that the child, Baby MT a Kenyan citizen by birth;b.That pursuant to the provisions of Section 159 of the Children’s Act, this Honorable Court be pleased to dispense with the requirements of Consent to the adoption as required by the provisions of Section 158 of the Children’s Act;c.That the applicants DNM and MWN be authorized to adopt Baby MT (the child);d.That upon the making of the Adoption Order, the child be known as IW;e.That upon the making of the Adoption Order, GNK and FWK of P.O. Box xxxx Kiserian be appointed as the Legal Guardians of the child as provided for by the provisions of Section 164 of the Children’s Act;f.That upon the making of the Adoption Order, the Registrar do make an entry recording adoption and the estimated date of birth of the child as September 30, 2016 in the Adopted Children’s Register as provided for by Section 170 of the Children’s Act;g.That the cost of the Application be in the cause.

2. The Originating Summons was supported by the Applicants’ Affidavits and Statement and further canvassed by way of viva voce evidence in open court.

3. PW1 was PNK the appointed guardian ad litem. He testified that he is the Applicants’ neighbour in their home in Kiserian, and so he knows Baby MT.

4. PW2 was GDK the legal guardian of Baby MT. He testified that he has been a neighbour to the applicants for the last 10 years, therefore he knows the family very well.

5. The Applicant, DNM as PW3 testified that he is married to MWN. He added that he works as a builder and has enough resources to take care of the child. He does not have biological children but has lived with baby MT as his father. Upon adoption, he would like the child to be known as IWN.

6. PW4 was the Applicant MWN. She testified that Baby MT was placed in her care and her husband DNM in 2018 when he was 2 years old. MWN is a teacher by profession.

7. PW5 was CO a Senior Children’s Officer. She testified that she assessed the Applicants and filed her report dated September 16, 2021. In the said report, she stated that baby MT was abandoned in Kwangware on January 12, 2017 and the matter was reported to Muthaiga Police Station. A final letter by the police dated October 29, 2018 indicated that the efforts of tracing the biological mother or any relative were in vain. The child was subsequently admitted to New Life Home through a Committal Order dated August 8, 2018. On July 10, 2018, baby MT was placed with the Applicants for the mandatory bonding period prior to adoption. PW5 has no reservations about the Applicants adopting the child.

Determination 8. I have considered the Summons, Statements and the various reports filed. The prerequisites for adoption are set out in Section 156(1) of the Children’s Act, 2001 which stipulates as follows: -“159(1) No arrangement shall be commenced for the adoption of a child unless the child is at least six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.”

9. At the time when this adoption process commenced, Baby MT was 2 years of age which is above the six (6) week age limit provided for by law. The child was declared free for adoption by Little Angel’s Adoption Society on October 29, 2018 vide a Certificate of Freeing Serial Number xxxx. I am satisfied that the legal prerequisites for an adoption order have been met.

10. The duty of this Court is to analyze the material before it determines whether the Applicants are suitable adoptive parents. The Applicants are Kenyan citizens as evidenced by the copies of their National Identify Card. They are all engaging in gainful employment and can sufficiently provide for Baby MT. The Applicants have also annexed copies of their Clearance Certificate issued by the Kenya Police Service as proof that they have no criminal record.

11. The Applicant has appointed GDK and FWK to be Baby MT’s legal guardians in the event that they would be unable or unavailable to provide for the child. Also, the Applicants’ external family is supportive of their intention to adopt Baby MT. From the material availed to this Court I am satisfied that the Applicants are suitable adoptive parents.

12. The subject child was abandoned when she was less than 6 months old. Article 14 of the Constitution deals with the question of Citizenship. It stipulates that:“(4)A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth.”

13. I hereby declare Baby MT, a citizen of Kenya by birth.

14. Furthermore, in deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 4(2) of the Children Act2001 provides as follows:-“(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”

15. Baby MT was abandoned at a tender age. He was bound to face an uncertain life. This adoption allows him the opportunity to be raised in a stable and loving home environment. A home visit was conducted by the Children’s Officer. The Applicants were reported to be living in a three-bedroomed house with Baby MT. The home was reported to be safe, secure, and conducive for raising a child.

16. The age assessment form filed estimated the child’s date of birth to be September 30, 2016.

17. I find that this adoption does serve the best interests of the child. Accordingly, I do allow the Originating Summons dated November 26, 2019 and make the following orders:-

a.The Applicants, DNM and MWN are authorized to adopt the child known as Baby MT.b.Upon adoption, the child shall be known as IWN.c.The child is declared to be a Kenyan Citizen by birth and is entitled to all rights and benefits under the Constitution of Kenya and all applicable laws.d.The child’s date of birth is hereby declared to be September 30, 2016, and his place of birth is hereby declared to be Nairobi County.e.The guardian ad litem, PNK, is hereby discharged.f.GNK and FWK are hereby appointed as the legal guardians of the child.g.The Registrar General is directed to make the relevant entry in the Adopted Children Register.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER 2022E.K. OGOLAJUDGEIn the presence of:Ms. Onyiego h/b for Mr. Munyithia for the ApplicantGisiele Muthoni Court Assistant.