[2023] KEHC 25647 (KLR)

In re Baby NB (The Child) (Adoption Cause 6 of 2023) [2023] KEHC 25647 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25647 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause 6 of 2023

HM Nyaga, J

November 20, 2023

In the matter of

AMK

1st Applicant

MNU

2nd Applicant

Ruling

1. AMK and MNU (hereinafter the 1st and 2nd applicants) moved to this court through an originating summons dated 3rd April, 2023 brought under Sections 186,187,188,194,195 and 200 of the Children Act No. 29 of 2022 and Sections 1A, 1B & 3 A of the Civil Procedure Act seeking orders that; they be authorized to adopt the Child; Baby N.B who is a Kenyan Citizen, presumed to have been born on 15th November,2019; upon adoption, the child be known as NMM; FMM and ONM of Kenyan National Identity Cards Number 23085723 and 22347458 be appointed as legal guardian of the child; Baby N.B; 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; & the Director of Immigration be authorized to issue the child; N.M.M with a Kenyan Passport

2. The application is supported by a statement of particulars jointly sworn on 3rd April, 2023 by the Applicants in which they averred that; they are Kenyan citizens of Identity Cards No. 14716900 and 11351221 respectively; they were born in 1977 & 1972 respectively; they solemnized their marriage on 5th August,2006 at [Particulars withheld] in Mombasa and they are blessed with two (2) biological children. Namely;i.EMM born on 20th June,2007ii.MMM born on 5th July,2011.

3. The Applicants reside at Kiamunyi in Nakuru County. Their motivation to adopt the child herein has been prompted by their love for children and desire to give a child a permanent home and love.1. The above children have consented to this Adoption.2. Regarding their economic status, the Applicants are pastors at [Particulars withheld] and that the 1st Applicant is also a singer, Director and Music Producer at [Particulars withheld].3. With respect to the Child, he was abandoned two days after birth by her mother at Keroka in Hunters, Kasarani at around 2200 hrs and was rescued by a good Samaritan one Grace Kerubo who was a resident there. The incident was reported at Kasarani Police station vide OB No 36/16/11/2019. On 5th February,20202 through Kasarani Children’s Office he was placed at Rehema PEFA Home as a child in need of care and protection.

7. On 5th February, 2020, the minor was formally committed to Rehema PEFA through Protection and Care case No 70 of 2020 Nairobi children’s court. Every effort to trace the child’s parents or close relatives having failed, police department Kasarani issued a final letter dated 27th November,2020 confirming as such.

8. Consequently, the baby was declared free for adoption by Little Angels Network on 3rd March, 2021. A declaration certificate S/No. 002141 was issued to that effect. The child was placed under the care and control of the applicants on 9th June, 2021 and has been there to date.

9. Prior to the hearing, the Assistant Director Children Services filed his report dated 27th September, 2023 recommending the adoption. The guardian Ad litem also filed hers dated 16th October,2023 also approving the adoption.

10. During the hearing, the applicants expressed their desire to adopt the baby. The baby was also present in court and was in good health and high spirits. The legal guardian testified and she understood her role as a guardian.

Analysis & Determination 11. Having considered the Application and materials in support, I am of the considered view that the following issues arise for determination;1. Whether the baby is available for adoption.2. Whether the applicants are fit to adopt the baby3. Whether the adoption is in the best interests of the child.

Whether the baby is available for adoption 12. From the material presented before this court, the minor was abandoned by his mother. Even though the police officers were not patent on the specific effort made to trace the mother who delivered the child, police department confirmed vide their final letter 27th November,2020 that the relatives or parents of the minor could not be found. Further Nobody has come forth to claim the baby since the time he was abandoned.

13. There is a certificate on record by Little Angel’s Network declaring the child available for adoption issued on 3rd March, 2021. The child is therefore free and available for adoption.

Whether the applicants are fit to adopt the baby 14. The applicants are Kenyan citizens thus qualifying the adoption to be a local one. They are aged above 25 years and below 65 years which is the age bracket for potential adoptive parents in compliance with Section 186(2) (a) and (b) of the Children Act 2022.

15. Having perused reports filed by Guardian Ad litem dated and the Assistant Director of Children Services, all the documentation filed in support thereof, I am of the view that the Applicants do possess the requisite legal capacity to adopt the child and they understand the entire adoption process plus its future implications for themselves as a family and in particular, the need to provide the best for the adopted child all their life.

16. The applicants are Christians with no criminal record thus an assurance that the baby will benefit from proper moral character and Christian foundation for his proper growth and development as an upright citizen. The child has also bonded well with the Applicants during the period they have stayed together. It is thus my holding that the applicants are fit to adopt the minor.

Whether the adoption is in the best interests of the child 17. The Children Act 2022 under Section 194(1) (c) requires the court to be satisfied before making an adoption order that such an order would be in the best interest of the child. Further the Constitution under Article 53(2) states: -“A child’s best interest are paramount importance in every matter concerning the child.”

18. From the time the child herein was abandoned no one has come forth to claim him. He was placed in custody of the Applicants in 2021, and has fully bonded well with the adoptive parents’ family. According to the report by the guardian ad litem the child is well settled and attached to the prospective adoptive parents. The biological children of the applicants herein have shown much love to the baby. The adoptive parents have provided shelter and financial support to the baby and are willing to continue taking care of all his needs. The baby is enjoying a comfortable life. I am therefore satisfied that the adoption herein is in the best interests of the minor.

19. Accordingly, the Originating Summons dated 3rd April, 2023 is allowed in the following terms:i.That the Applicants be and is hereby authorized to adopt Baby NB.ii.That the baby shall henceforth be known as NMM (full name) to be set out in the order directed to the Registrar.iii.The subject’s date of birth shall be 15th November 2019 and the place of birth shall be Nairobi, Kenya.iv.That the Registrar General be and is hereby directed to enter this adoption order in the Adopted Children’s Register and to issue a certificate to that effect.v.That FMM & ONM be and are hereby appointed the legal guardians of the child under section 195(1) of the Act.

vi.That the Guardian Ad Litem be and is hereby discharged.

DATED, SIGNED AND DELIVERED AT NAKURU THIS DAY OF 20TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenniferMr. Haggai for Applicants