[2024] KEHC 16262 (KLR)

In re Baby MW (Adoption Cause E028 of 2021) [2024] KEHC 16262 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16262 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E028 of 2021

MW Muigai, J

December 18, 2024

IN THE MATTER OF CHILDREN ACT 2022 AND IN THE MATTER OF BABY MWW

In the matter of

CWN

Applicant

Judgment

1. Pursuant to the Judgment delivered by this Court on 24th day of July, 2023 the Court directed as follows; -1. No Adoption until the following are provided:a.Avail details of Applicants capability/financial statements.b.Director Children’s Services Report.

Notice of motion 2. The Applicant, CWN filed an application dated 22/10/2024 seeking the following orders:a.Spentb.That this Court to reinstate Adoption Cause No.E028 of 2021 that was dismissed or put on hold by the Ruling dated 24/07/2023. c.That this Court grant the Applciant, CWN authority to adopt baby MWW upon the Applicants compliance with the condition set out in the ruling.d.That this Court to issue any other orders that may be deemed necessary for the welfare of the minor.

3. The Application is based on the following grounds:1. That this Court directed that the Applciant provide financial Statement proving her capability to take care of the minor and obtain a report from the Director of Children services.2. That the Applicant has now fully complied with the Court’s orders by providing the required documentations.3. That the minor MWW has been in the care of the Applicant since 2014 and any further delay will cause unnecessary emotional and psychological harm to the minor.

4. The Applicant, CWN - ID NO.931xxxx known as the ‘Applicant’ herein sought by her application to be allowed by this Court to adopt MWW (hereafter’ the minor).

5. Vide Originating Summons application dated 23rd day of November 2021, the Applicant sought among other orders that Gakinya Jeremiah Karimi be appointed as the child’s Guardian Ad Litem, that the Applicant CWN be authorized to adopt baby MWW, that the Director Children Department, investigate the case and file report, that the Registrar General shall make in the adopted Children’s register an entry the adoption in accordance with the particulars set out in the schedule attached thereto of Gakinya Jeremiah Karimi.

6. The child known as MWW who is the subject of these proceedings was born to LWN on the 26th September, 2008 at Athi River Medical Services in Machakos County. The details of the minor’s father are unknown since the Certificate of Birth Serial No.159893 did not indicate her father’s name. The minor’s mother passed on 9th February, 2014 vide Certificate of Death Serial No. 29xxxx leaving behind the child subject of these proceedings and her elder brother who is already an adult.

7. According to the family no one was ever introduced to them or showed up from the time MWW was born claiming to be her father or participating in her upbringing as a father therefore as far as the family is concerned MWW was orphaned the time she lost her mother. After the death of the minor’s mother, MWW moved into the Applicant’s (CWN) home at Kitengela for she had no one to take care of her after the demise of her mother in 2014 and her grandmother who she lived with previously relocated to the USA. The Applicant took all the parental responsibilities over the child and has loved and cared for MWW just like she has done to her own biological daughters namely; AKM born in 1989, JW born in 1993, TW born in 1997, MW born in 2002 and EM born in 2008. The said children have consented to the adoption of MWW (minor) vide their consent dated 3/03/2022. The Applicant wishes to adopt the child to have full rights legally to perform parental obligations over the child and secure the child’s future in a family set up.

8. KN of ID No.3291xxxx, a resident of Athi River is MWW’s elder brother. He is aware of the intended adoption and has consented to it vide his Consent dated 16/02/2022. According to him the Applicant has been more than a mother to them since the demise of their biological mother.

9. The Applicant is the minor’s maternal aunt (she is a sister to the late LWN the mother to MWW (minor)) and she desires to adopt her niece to have full parental responsibility over her legally. This will give the minor an opportunity to live in a family that she belongs to and foster a sense of security. All the Applicant’s siblings are in support of these adoption vide their consent dated 1st March, 2022.

10. On 19th May 2023 Buckner Kenya Adoption Services declared the minor free for adoption vide a Certificate of Declaring a Child Free for Adoption Serial No. 0641.

11. The following documents were availed from Buckner Kenya Adoption Services for MWW (Minor)- Birth Certificate for MWW- Death Certificate for LWN (the minor’s mother)- The minor’s elder brother – KN letter of consent- Legal Guardians letter of consent- Applicants biological children letters of consent- Applicants siblings consent- Copies of Identification Cards for the Legal Guardians- Medical Report for the Adoptive parent- Certificate of acknowledgement from Buckner Kenya Adoption Services- Confidential referee information- Introduction letter of the Applicant in respect of the Applicant from Rev. JM St. Jude’s Catholic Parish

12. Pursuant to the Children Act, Kenya Children’s Home Adoption Society, the relevant Adoption Society, Buckner Kenya Adoption Services, the relevant Adoption Society, prepared and filed in Court a favourable report dated 12/06/2023 in respect of the proposed adoption of the child by the Applicant.

13. Mr. James Jumba the Social worker at the said Adoption Agency appeared in Court on 14/06/2023. He told the Court that this is a kinship adoption as the Applicant is a sister to the minor’s mother LWN (deceased). The Applicant took the minor in the year 2014 after the minor’s mother LWN passed on vide death Certificate Number 290472. The Applicant has five biological children. Four of the children are over 18 years. The children are namely Ann Kariuko Muturi, Julia Waithera Muturi, Teresia Wangari Muturi, Mary Wairimu Muturi and Esther Mugeci Muturi who all gave written consents to the adoption of their cousin (MWW the minor herein) dated 3rd March, 2022.

14. The report contains family and professional background information of the Child’s Adoptive Parent. According to the report the Applicant approached the Buckner Kenya Adoption Services applying to adopt her niece aged 14 years. The child is a daughter to her late sister LWN who passed on 9/2/2014. The Applicant is of sound mind and in good health as per the medical records filed and capable of exercising proper care and guardianship of the child. She has no criminal record as per the police clearance certificate serial No. PCC-J5TPxxx. The Society took her through the relevant interviews and a home assessment was carried out and she was found eligible and at the Buckner Kenya Adoption Services Case committee sitting on 19th May, 2023 approved her application.

15. The Applicant was married to JM (deceased) who passed on in the year 2004. The Applicant lives in a 2 bedroomed house in Kitengela connected with water and electricity. She is self-employed venturing into business of selling clothing and shoes in xxxx . The house has a perimeter fence and lockable gate that provides good security. The Applicant is a Christian, she attends St. Jude Catholic Church.

16. The Director of Children’s Services filed their report dated 28/11/2023 in respect of the proposed adoption of the child by the Applicants. Emily Kimanzi the Machakos Sub County Children Officer appeared in Court on 18/11/2024 in respect of the proposed adoption of the child by the Applicants. She told the Court that this adoption is a kinship adoption and she interacted with the family. The minor is an orphan. The Applicant is an Aunt to the minor. The family supports the kinship adoption.

17. Similarly, the Report dated 28/11/2023 contains education and family background of the Applciant. The Applicant was married to JM (now deceased) under customarily and later solemnized union in 1994. The Applicant runs her own business at Kitengela. The Applciant has five (5) biological children four of them already grown and one in High School. The minor in this matter is also enrolled at (particulars withhels) girls High School in Form Two. During the visit it was observed that the extended family of the Applciant are very knit together and support each other well which is visible. The Applicants living outside the Court provide support to those in Kenya. The Applicant is a sister to the minor’s late mother; the minor is in full support of the arrangement since the Applicant has loved and care for her since the demise of her mother to date. The Applciant is financially stable (financial statement attached) and continues to provide for the needs of the minor. The Applicant’s biological children are in full support of the process. The Director of Children’s Services has recommended the adoption.

18. The proposed legal guardian is RG (a brother to the Applicant) and his wife MN. The extended family members are very supportive of the adoption. All the applicants’ siblings have supported their elder sister as suitable to adopt MWW. The Buckner Kenya Services Committee recommended the kinship adoption by the Applicant.

19. The proposed Guardian ad Litem, JGof ID No. 2810xxx filed his Report on 15th December, 2021 in support of these Adoption proceedings. He stated that he is an uncle to the minor and was in support of the adoption.

20. The Director of Children Services did not file their report in respect of these proceedings which is mandatory for the said Department to file a Report in Court or indicate any objection or consent to the Adoption after conducting investigations in the matter.

21. The legal Guardians Rg of ID NO. 2260xxxx (a maternal uncle to the minor) and his wife MNNof ID. No. 3043xxx filed their letter of consent dated 1/02/2022. They stated that they understood that as the legal Guardians they are expected to take over parental responsibility over the minor in case of any eventuality of the Applicant or total incapacitation and disability. They consented to be the Legal Guardians of the child and recommended the adoption.

22. 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 adoption of the child. However, This Court has noted that there is no Report from the Director of Children Services either in support or in objection of the said Adoption. There is no financial evidence to prove that the Applicant is capable to take care of the minor.

23. The Applicant have now fullfilled all the legal requirements relative to the adoption of the child as per Section 186 Children’s Act 2022.

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 Applicant, CWN is hereby allowed to adopt the child MWW.

3. Henceforth, the child shall be known as MWW.

4. The child’s date of birth is 26/09/2008 and the place of birth shall be ATHI RIVER.

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

6. RGand MNN shall be the Legal Guardians 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’s Act 2022.

9. The Guardian Ad Litem is hereby discharged.

It is so ordered.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT AT MACHAKOS THIS 18THDAY OF DECEMBER, 2024 (PHYSICAL/VIRTUAL CONFERENCE).M. W. MUIGAIJUDGE