[2022] KEHC 12072 (KLR)
The court found that although Section 158(2)(b) of the Children Act generally prohibits a sole female applicant from adopting a male child, special circumstances existed in this case. The child, abandoned at birth and declared free for adoption, had not found any willing adoptive parents due to his advanced age. The...
Source-derived case information.
- Citation
- [2022] KEHC 12072 (KLR)
- Parties
- Applicant: JNM; Respondent: Director of Children Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause E124 of 2021
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- Adoption granted.
- Judges
- AO Muchelule
- Legal Topics
- Adoption of Children, Best Interests of Child, Abandoned Children, Special Circumstances Exception
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JNM
Applicant
Director of Children Services
Respondent
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether a sole female applicant may adopt a male child under the Children Act given the statutory prohibition.
- 2 Whether special circumstances exist to justify the adoption of the male child by the applicant.
- 3 Whether the adoption is in the best interests of the child.
Ratio Decidendi
The court found that although Section 158(2)(b) of the Children Act generally prohibits a sole female applicant from adopting a male child, special circumstances existed in this case. The child, abandoned at birth and declared free for adoption, had not found any willing adoptive parents due to his advanced age. The applicant had fostered the child for approximately two years, during which a strong bond developed. Both the Director of Children Services and the guardian ad litem recommended the applicant as suitable, finding her emotionally, socially, and financially stable. The court determined that separating the child from the applicant would not serve his best interests. The applicant...
Court Disposition
Adoption granted.
Orders
- The applicant JNM is allowed to adopt Baby boy AKA PBM.
- Baby boy AKA PBM shall henceforth be known as FMM.
Full Case Text
Judgment text and source record
21 paragraphs
In re Baby PBM (Adoption Cause E124 of 2021) [2022] KEHC 12072 (KLR) (Family) (12 May 2022) (Judgment)
Neutral citation: [2022] KEHC 12072 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Adoption Cause E124 of 2021
AO Muchelule, J
May 12, 2022
IN THE MATTER OF THE CHILDREN ACT, 2001 AND IN THE MATTER OF ABANDONED BABY BOY A.K.A. P.B.M IN THE MATTER OF AN APPLICATION FOR ADOPTION
In the matter of
JNM
Applicant
Judgment
1. The applicant JNM is a single Kenyan woman aged 63 years. She a retiree of the Kenya Defence Force. She had a daughter who is since deceased. She filed this originating summons dated 15th September 2021 seeking to adopt the Baby boy AKA. PBM.
2. Baby boy AKA PBM. is presumed to have been born on the 31st August 2017. It was found abandoned on 13th September 2017 at [particulars withhehld] Village within Nkubu in Meru County. The incident was reported at Mitunguu Police Station vide OB No. 20/13/9/xxxx. The baby was temporarily placed at Ripples International New Start Centre on the 11th October 2017. He was formally committed to the said institution by the Nkubu Children’s Court in Protection and Care Case No. 24 of 2017 on the 30th October 2017. The final police letter dated the 19th March 2019 indicated that all efforts to trace the parents or relatives of the child were not successful. On the 27th April 2019 the child was declared free for adoption vide Certificate No. 0xx issued by the Ripples International. The applicant has been with the child since 9th December 2019 when it was placed with her for foster care.
3. On 2nd December 2021 the court appointed MKK as the guardian ad litem and ordered her and the Director of Children Services to separately carry out a social inquiry on the applicants to determine their suitability to adopt the child. The two reports were filed. Both recommended the applicants to be allowed to adopt the child. The reports found that the applicants were socially, emotionally and financially stable and suitable to adopt the child. It was also found that the child had bonded well with her.
4. Section 158(2) (b) of the Children Act prohibits a sole female applicant from adopting a male child. The Director of Children services recommends such adoption on the justification that the child is four (4) years and has not been able to find any adoptive parents that are ready and willing to adopt him due to his advanced age. The court considered this as a special circumstance.
5. This court notes that the child has bonded well with the applicant for the last approximately two (2) years and it will not be in the interest of the child to separate him from the applicant and the home he has now grown fond of.
6. The court finds that it is in the best interest of the child to be adopted by the applicant. The applicant has demonstrated her capability to provide a conducive home and family environment in which the child will grow and develop. She will assume all parental rights and obligations of the biological parents of the child once adopted and shall treat him as if he was born to her. She has been made aware that once the adoption order is made, it shall be final and binding during the lifetime of the child. The child shall have the right to inherit her property. The applicant shall not be able to give up the child owing to any subsequent unforeseen behavior or other changes in the child. The consent of the parents of the child is hereby dispensed with as he was found abandoned.
7. Having been satisfied that all the legal requirements for a local adoption under the Children Act have been met, the following orders shall issue:-a.the applicant JNM is hereby allowed to adopt Baby boy AKA PBM;b.Baby boy AKA PBM shall henceforth be known as FMM;c.the child’s date of birth shall be 31st August 2017, and shall be presumed Kenyan citizen having been born to a Kenyan woman in [particulars withheld] Village in Meru County in Kenya;d.CMK is hereby appointed as the child’s legal guardian in the event of the death or incapacity of the applicants before he is of full age and fully self-reliant;e.the Registrar-General is directed to enter this adoption in the Adopted Children Register; andf.the guardian ad litem is hereby discharged.
DATED and DELIVERED at NAIROBI this 12THday of MAY, 2022. A.O. MUCHELULEJUDGE