[2019] KEHC 10235 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

ADOPTION CAUSE NO. 1A OF 2016

IN THE MATTER OF THE CHILDREN ACT

AND

IN THE MATTER OF AN APPLICATION FOR A LOCAL ADOPTION

BY KSG AND MWG

AND

IN THE MATTER OF THE ADOPTION OF BABY MWG (MINOR)

JUDGMENT

1. This is an application for a local adoption.

2. The applicants, KSGandMWG [particulars withheld] are an elderly Kenyan couple aged 66 and 64 respectively. They have been married since 1971. Their marriage certificate is on the record. I will refer to them as the applicants or proposed adoptive parents.

3. The ex parte originating summons is dated 24th May 2016. It is brought under the Children Act and the Regulations thereunder (hereafter the Act and Regulations). There is a joint deposition and verifying affidavitsworn by the applicants together with a bundle of materials filed on even date.

4. A comprehensive and original report was filed by Rhoda Mwikya, the County Coordinator of Children Services, Murang’a. It is dated 3rd April 2018. It concludes that the applicants are qualified to adopt the minor. KKPI Adoption Society was unable to declare the child free for adoption for want of a committal order by the Children Court. The letter is dated 27th September 2018.

5. However, there are three important letters from the Kenya Police Service dated 2nd August 2013, 16th July 2018 and 4th January 2019. They all confirm that the minor was abandoned in Murang’a; that a formal report was made to the police; and, that subsequent investigations to trace the biological parents were not fruitful. I am satisfied from the materials on record that the biological parents cannot be traced.

6. The applicants had at first presented themselves as foster parents. The truth is that their marriage was not blessed with children; and, their true intentions were to adopt the minor. They have lived with the minor for twelve years or thereabouts; and, provided for her upkeep and tuition.

7. The guardian ad litem and the two applicants testified on oath on 12th February 2019. I also interviewed the minor.

8. The minor is a girl now aged twelve yearsor thereabouts. Her date of birth is estimated to be on or about 6th January 2007. She is a class eight candidate at[particulars withheld] Primary School. A letter from the school is on the record.

9. I keenly observed the general demeanour of the child. She is a healthy and happy girl who has jelled well with the proposed adoptive parents. This was also confirmed by the answers I received on oath from the guardian ad litem.

10. The applicants are small scale coffee farmers and rear one cow. By our rural standards, they are financially stable and have been meeting the education and living expenses of the minor. They intend to continue to reside in Murang’a.

11. I confirmed that the proposed adoptive parents understand the finality and legal implications of an adoption order; that they will treat the minor like their biological child; and, that the adopted child will inherit her property in the same manner as any biological child.

12. Section 154 of the Children Act vests the High Court with power to make an adoption order. I find that it is in the best interests of the minor that she be adopted by the applicants. She has not known other parents since birth. It would be ridiculous to send the minor to an institution this late in the day. I am also satisfied that the applicants have the emotional and financial capacity to raise the adopted child.

13. Upon the grant of the adoption order, the applicants shall assume all parental rights and duties of the biological parents. They shall treat the adopted child as their own. The adoption order is final and shall be binding during the lifetime of the child; and, the adopted child shall have the right to inherit the property of the applicants. They cannot give up the child owing to unforeseen behavior or other changes in her character.

14. In the end, I am satisfied that the key legal requirements for a local adoption have been met. I therefore grant the following orders-

a)That the applicants be and are hereby allowed to adopt Baby MWG [particulars withheld];

b)That the name of the child shall be MWG [particulars withheld];

c)That the effective date of birth shall be recorded as 6th January 2007;

d)That the child is presumed to be a Kenyan Citizen;

e)That the Registrar General is directed to enter this adoption order in the Adoption Register;

f)That I appoint MK [particulars withheld] to be the minor’s legal guardian in the event that the applicants are incapacitated; or, unable to exercise parental obligations; and,

g)That the proceedings and judgment in this cause shall be sealed; and, shall not be accessible to any person without prior orders of the court.

It is so ordered.

DATED, SIGNEDandDELIVEREDat MURANG’Athis 13th day of February 2019

KANYI KIMONDO

JUDGE

Judgment read in chambers in the presence of-

The applicants (in person).

The guardian ad litem.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.