[2023] KEHC 25296 (KLR)

In re Baby PA alias PG (Child) (Adoption Cause 230 of 2022) [2023] KEHC 25296 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25296 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause 230 of 2022

MA Odero, J

November 10, 2023

IN THE MATTER OF CHILDREN’S ACT NO 8 OF 2001 AND IN THE MATTER OF ADOPTION OF BABY PA alias PG (THE CHILD) BY IN THE MATTER OF DTM.......................1ST APPLICANT MMP......................2ND APPLICANT

In the matter of

DTM

1st Applicant

MMP

2nd Applicant

Judgment

1. Before this court is Originating Summons dated 30th November 2022 by which the Applicants seek the following orders: -“1. That the applicants be authorized to adopt Baby PA alias PG to be known as TND.2. That LMM and NWK, be appointed as the legal guardians of the child in the event of the death or incapacity of the Applicants before the child is of full age and fully self-reliant.3. That the Registrar-General be directed to enter in the Adopted Children Register an entry recording the adoption.4. That the child be presumed to be a Kenyan citizen by birth.5. That the Director Immigration be directed to issue the child with a Kenyan Passport.6. That the court be pleased to make any further orders it deems necessary.”

2. The application 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 virtual platform.

3. The Applicants DTM and MMP are a couple who got married in the year 2017. Their union has not been blessed with a biological child. The couple however also have a son aged five (5) years whom they adopted in July, 2022.

4. The couple told the court that they wish to further expand their family by adopting the Subject child. The Applicants both confirm that they understand and accept the legal implications of an adoption order. They undertake to accord to the Subject child all the rights due to a biological child including the right to inherit.

Analysis and Determination 5. I have considered the application for adoption, the evidence adduced in support thereof as well as the various reports filed in court.

6. The prerequisites for before an adoption order can be made are set out in section 184 (1) (a) and (b) of the Children’s Act 2022: -“(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.”

7. The Subject child was born on 26th June 2021. A copy of her birth notification serial Number 57XXX57 is annexed to the summons. Thus, the child is now aged two (2) years old and is above the six (6) week age limit provided for in law.

8. Little Angels Network, which is a registered Adoption Agency have annexed to their report a copy of their Certificate Serial Number 00XX18 dated 1st December 2021 declaring the child Free for Adoption. I am therefore satisfied that all the legal prerequisites for an adoption order have been met.

9. The duty of this court is to analyze the evidence on record to determine whether the Applicants are suitable adoptive parents. The 1st Applicant is a Kenyan citizen as evidenced by the Annexed copy of his National Identity Card while the 2nd Applicant is a Tanzanian citizen. Attached to the summons is a copy of her passport No. AB 9XX6

10. The couple have been married for several years having solemnized their union on 9th December 2017. A copy of their Marriage Certificate Serial Number 19XX8 is annexed to the summons.

11. The couple have one (1) adopted child a son who was adopted in July 2022. The couple made the decision to grow their family through adoption after unsuccessful attempts to conceive. They now wish to adopt another child.

12. The Applicants are both gainfully employed. The 1st Applicant works as a freelance teacher of music. The 2nd Applicant runs a tailoring business called Trims Home Décor. The couple realize a joint monthly income of approximately Kshs 100,000 which is sufficient to enable them provide for the needs of their children. All in all, I am satisfied that the Applicants are financially secure.

13. The Applicants are Christians and intend to raise the child in the Christian faith. Both Applicants were examined by a doctor and were each found to be mentally and physically fit. The Applicants have annexed to the summons copies of Clearance Certificates issued to them by the Directorate of Criminal Investigations confirming that neither has a criminal record.

14. The Applicants told the court that their respective families are aware of and support their intention to adopt the Subject child. They have appointed the 1st Applicants cousin as one of the legal Guardians for the child. The proposed legal guardians LMM and NWK have each signed a consent dated 15th April 2019 and 14th April 2019confirming their willingness to act as legal Guardians for the child in the event of the death and/or incapacity of the Applicants.

15. Based on the material presented before this court I am satisfied that the Applicants are suitable adoptive parents.

16. The Subject child who was born on 26th June 2021 to SAO at [Particulars Withheld]. The child’s biological mother voluntarily gave up the child for adoption as the pregnancy was the result of a rape incident.

17. The child was admitted to House of Charity Children’s Home for care and protection as she was in good health. The child was committed by the Nairobi Childrens Court to the same home. On 23rd December 2021 the child was released into the custody of the Applicants under a Foster Care Agreement.

18. Article 14 (1) of the Constitution of Kenya 2010 provides that: -“(1)A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.”

19. The Subject child was born in Nairobi County in the Republic of Kenya. The mother is a Kenyan citizen. I therefore declare the child to be a citizen of Kenya by birth.

20. Section 186(8)(a) of the Children Act 2022 provides as follows:-“(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons—(a)a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child;(b)……………………..; and(c)……………………….” [own emphasis]

21. The biological mother to the subject child gave the initial consent and on 28th June 2021 and a signed letter has been provided of even date. She has also provided the final consent and a sworn statement dated 27th September 2021 which was attested by Mr. EM. I am satisfied that the mother has given consent as required by Section 186(8) (a) Children Act 2022.

22. In deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. Section 8 (1) of the Children Act 2022 provides: -“(8).(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—(a)the best interests of the child shall be the primary consideration;” [own emphasis]

23. This is a child who was born in unfortunate circumstances and the mother was not willing to keep the child. She faced an uncertain future living in children Homes and other similar institutions This adoption provides the child with the opportunity to be raised in a stable and loving home environment.

24. The child has been living with the Applicants in their home for close to two (2) years. She has undoubtedly bonded well with the Applicants. The child knows no other family. I was able to see the child online. She was a healthy and happy toddler.

25. A Home visit was conducted by the Childrens Officer on 22nd May 2023. The Applicants reside in a three bedroomed bungalow in [Particulars Withheld], Satellite. The home is spacious and well-furnished within a secure compound with adequate space for the child to play. The Children Officer noted that all the child’s needs have been taken into account.

26. I have considered the reports prepared by the Adoption Agency, the Guardian Ad Litem and the Director of Children Services. All three reports were positive and all recommend the adoption.

27. In conclusion, I find that this adoption does serve the best interests of the child. Accordingly, I do allow this application and make the following orders:-1)The Applicants DTM and MMP are authorized to adopt the child BABY PA alias PG.2)Upon Adoption the child shall be known as TND.3)The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and privileges pursuant thereto.4)LMM and NWK are appointed as the Legal Guardians of the child.5)The Registrar General is directed to make relevant entry in the Adopted Children Register.

DATED IN NAIROBI THIS 10TH DAY NOVEMBER, 2023. …………………………………MAUREEN A. ODEROJUDGE