[2022] KEHC 12147 (KLR)

In re Baby N (Adoption Cause E107 of 2021) [2022] KEHC 12147 (KLR) (Family) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12147 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E107 of 2021

MA Odero, J

May 13, 2022

In the matter of

SMW

1st Applicant

ANK

2nd Applicant

Judgment

1. Before this court is the originating summons dated August 23, 2021 by which the applicants SMW and ANK seek the following orders:-i.That SMW of Kenyan national identity card number XXXX and ANK of Kenyan national identity card number XXXX be authorized to adopt AG alias NM (the child) who is a Kenyan citizen, presumably born on the March 22, 2020. ii.That upon adoption, the child shall be known as FNM.iii.That GWN and AMK of Kenyan national identity card numbers XXXX and XXXX respectively be appointed as legal guardian of AG alias NM (the Child).iv.That the Registrar General be directed to enter this adoption into the Register of Adoptions and a subsequent birth certificate do issue by the Registrar of Births and Deaths.

2. The summons was supported by the statement of even date sworn by the two applicants. The matter was canvassed by way of viva voce evidence on the online platform.

3. The applicants herein SMW and AMK, are a couple who got married to each other in the year 2011. The couple has no biological child of their own hence the desire to adopt the subject child who is a two year old girl child. The applicants both confirmed that they understood and accepted the legal implications of an adoption order and undertook to accord the subject child all rights due to a biological child including the right to inherit. They confirmed that their extended family were all aware of and supported the couple’s intention to adopt the child.

4. PW3 NW was the guardian ad litem. He produced in court his report recommending the adoption.

5. PW5 Caroline Olilowas an officer from the Directorate of Children’s Services Nairobi County. She produced their report recommending the adoption.

Analysis and Determination 6. I have carefully considered this application for adoption the various affidavits and reports on record as well as the relevant law. I have also considered the evidence adduced in open court. The preliminary requirements for the making of an adoption order are set out in section 156(1) of the Children Act 2001which provides as follows:-“159 (1)No arrangement shall be commenced for the adoption of a child unless the child is atleast 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.”

7. The subject child was born on or about March 22, 2020. The child is now about two (2) years old well above the six (6) week age limit provided for in law.

8. The Kenya Children’s Home Adoption Society which is a registered adoption agency has annexed at page 58 of the summons a copy of their certificate serial number XXX declaring the child free for adoption. Accordingly, I am satisfied that all the legal pre-requisites for an adoption order have been met.

9. The duty of this court is to analyse the material placed before it and make a determination as to whether the applicants are suitable adoptive parents. The applicants are both Kenyan citizens. Annexed at pages 17 to 20 of the summons are copies of their national identity cards. The got married to each other on April 9, 2011 at the Not I But Christ Church in Nairobi as evidence by the copy of their marriage certificate serial No XXXXX annexed at page 21 of the summons.

10. The applicants are both Christians and intend to raise the child in the Christian faith. Annexed to the summons is a recommendation letter dated February 24, 2021 written by Bishop DMM of the NIBC Church in Kayole where the applicant both worship.

11. The applicants are engaged in gainful self-employment. They have a general equipment shop along Kangundo Road as evidenced by the single business permit at page 45 of the summons. They have also attached a bank statement belonging to the 1st applicant from pages 22 to 44 of the summons showing their financial capacity. The applicants also have two plots in Joska.

11. The Applicants were both examined and found to be physically and mentally fit. Annexed to the summons at pages 46 to 49 are copies of their medical reports signed by a Dr Odero. The applicants have also annexed copies of their certificates of good conduct issued by the Kenya Police Service at pages 51 to 52 which prove that neither has any criminal antecedents.

12. The applicants told court that their respective families are aware of and support their intention to adopt the subject child. That the child has been welcomed and is fully embraced by the family. Indeed the applicants have appointed the 2nd applicant’s sister AMK and her husband GWN as legal guardians of the child. The said AMK and GWN have both signed a consent dated August 23, 2021. They have attached their respective copies of national ID cards. These annextures are from pages 61 to 64 of the summons.

13. As stated earlier the child is a girl child who was born on or about March 22, 2020. The child was abandoned at Gatuanyaga area in Thika at birth. A Good Samaritan rescued the child and reported the matter at Thika Police Station vide OB Number XX of XX/X/2020. The Sub County Children’s Officer Thika sought a vacancy at Macheo Children’s Home where the baby was admitted on May 14, 2020. Thereafter on May 19, 2020, Thika Children’s Court committed the child to the same home for care and protection. On June 7, 2021 the child was released into the custody of the applicants under a foster care agreement.

14. Following the abandonment of the child, efforts by the police to trace the biological parents and relatives of the child have borne no fruit. Similarly no person has come forward to claim the child. The final police letter dated December 8, 2020is annexed to the Summons at page 55.

15. Given that this child was abandoned by her biological mother there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances I dispense with the requirement for consent in line with section 159(1)(e) of the Children Act.

16. Article 14 of theConstitution of Kenya, 2010 deals with issue of citizenship. Article 14(4) provides as follows:(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.”

17. The subject child was abandoned at birth in Thika, Kiambu County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth and I so declare.

18. In deciding upon any matter involving a child courts are obliged to give priority to the best interests of the said child. Section 4(2) of the Children Act 2001 provides:-“(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (own emphasis)

19. Following her abandonment the subject child was committed to Macheo Children’s Home for care and protection. On June 7, 2020 she was placed into the custody of the applicants under a foster care agreement. The child has lived with the applicants in their family home since she was about three (3) months old upto the present date. I have no doubt that the child has bonded with the applicants and considers them to be her parents. I was able to see the child online; she was healthy and well dressed. The child was obviously very comfortable in the company of the two applicants.

20. A home visit was conducted. The applicants were found to be residing in a rented house at Saika Estate. The house is a permanent one bedroomed home. The security is good; the apartment has a lockable gate and a guard to enhance security. I have perused the reports prepared by the Director Children Services, the guardian ad litem and the adoption agency. All are positive and recommend the adoption.

21. This is a child who having been abandoned at birth faced an uncertain future in children homes and institutions. This adoption provides the child the opportunity to be raised in a stable and loving home environment. All in all I am satisfied the adoption will serve the best interest of the child. Accordingly I allow this application and make the following orders:-i.The applicants SMW and ANK are authorized to adopt the child known as AG alias NM.ii.Upon adoption the child will be known as FNM.iii.The child is declared Kenyan citizen by birth and entitled to all the rights and benefits in respect thereof.iv.The Registrar General is directed to make appropriate entries in the Adopted Children’s Register.v.GWN and AMK are appointed as legal guardians of the child.It is so ordered.

DATED IN NAIROBI THIS 13TH DAY OF MAY 2022MAUREEN A ODEROJUDGE