[2022] KEHC 12079 (KLR)

In re Baby R (Adoption Cause E102 of 2021) [2022] KEHC 12079 (KLR) (Family) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12079 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E102 of 2021

MA Odero, J

May 6, 2022

In the matter of

PWM

1st Applicant

MNP

2nd Applicant

Judgment

1. Before this court is the originating summons dated July 30, 2021by which the applicants PWM and MNP seek the following orders:-1. That the applicants herein be allowed to adopt the child currently identified as Baby R2. That henceforth, the child be renamed as NR .3. That the child’s date and place of birth be declared to be September 13, 2019at Nairobi County.4. That the child be presumed to be a Kenyan citizen by birth; and consequently entitled to all the rights and benefits in respect thereof.5. That consent of the child’s biological parent/guardians be dispensed with6. That WMP and DKM be appointed as legal guardians of the child, in the event that the applicants herein are incapacitated or in any way unable to discharge their parental obligations.7. That the guardian ad litem be discharged.8. That the Registrar General be directed to make the appropriate entries in the Adopted Children’s Register9. That this court do issue such further orders as are in the interest of justice”.

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 PWM and MNP, are a couple who got married to each other in the year 2010. The couple have no biological child of their own hence the desire to adopt a 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.

Analysis and Determination 4. 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’s Act2001 which provides as follows:-“159 (1) No arrangement shall be commenced for the adoption of a child unless the child is at least 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.”

5. The subject child was born on or about September 13, 2019. Therefore the child is now aged about two and half (2 ½) years old well above the six (6) week age limit provided for in law.

6. The Buckner Kenya Adoption Services which is a registered adoption agency has annexed at page 92 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.

7. 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 23 and 24 of the summons are copies of their national identity cards. The couple got married in May 2010 under Kamba Customary Law and later solemnized their vows on September 29, 2018 at the [particulars withheld] Lavington in Westlands Nairobi as evidence by the copy of their marriage certificate serial No xxxxx annexed at page 26 of the summons.

8. The applicants are both engaged in gainful employment. The 1st applicant is employed at [particulars withheld] as a customer care executive with a monthly income of Kshs 247,120/ as evidenced by the payslips and statement from pages 29 to 34 of the summons. The 2nd applicant is employed at [particulars witheld] as a trade service officer with a monthly income of Kshs 201,243/- as evidenced by the payslips and statement at pages 35-47 of the summons. Between them the applicants realize a monthly income of approximately Kshs 448,000/= which is more than adequate to provide for the needs of a growing child.

12. The applicants were both examined and found to be physically and mentally fit. Annexed to the summons at pages 48 to 55 are copies of their medical reports signed by a Dr NG Thagana. The Applicants have also annexed copies of their Certificates of Good Conduct issued by the Kenya Police Service at pages 56 to 57, which prove that neither has any criminal antecedents.

13. 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 WMP and her husband DKM as legal guardians of the child. The said WMP and DKM have both signed a consent dated November 7, 2020, confirming their willingness to act as legal guardians for the child.

14. The applicants are both Christians and intend to raise the child in the Christian faith. They are both worshipers at the [particulars withheld] Church in Buruburu. At page 25 of the summons is a letter of recommendation dated October 21, 2020 written by their parish priest.

15. As stated earlier the child is a boy child who was born on or about September 13, 2019. The child was abandoned near Vikem House in the Githurai Mumbi area aged only two (2) weeks old. A Good Samaritan rescued the child and reported the matter at Githurai Kimbo Police Station vide OB Number 30 of September 21, 2019. Thereafter the Nairobi Children’s Court committed the child to Happy Life Children’s Home on September 21, 2019. On February 19, 2021 the child was released into the custody of the applicants under a foster care agreement.

16. 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 November 5, 2020 annexed to the Summons at page 89 proves that the parents/relatives of the child have not been traced to date.

17. Given that this child was abandoned by his 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)(a) of the Children’s Act.

18. 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.”

19. The subject child was abandoned at birth in Nairobi County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth and I so declare.

20. 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)

21. Following his abandonment the subject child was committed to Happy Life Children’s Home for care and protection. On February 19, 2021 he 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 he was about sixteen (16) months old upto the present date. I have no doubt that the child has bonded with the applicants and considers them to be his parents. Indeed this is the only family he child knows. I was able to see the child online; he was happy, healthy and cheerful and was riding his bike. The child was obviously very comfortable in the company of the two applicants.

22. A home visit was conducted on January 29, 2021. The applicants were found to be residing in a rented house at [particulars withheld] Estate. The home was a spacious three bedroomed house in a safe, secure and clean neighborhood. The environment was found to be conducive for raising a young child. 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.

23. 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 PWM and MNP are authorized to adopt the child known as BABY R alias UnkownBaby Boyii.Upon adoption the child will be known as NRPiii.The child is declared to be Kenyan Citizen by birth and is 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.WMP and DKM are appointed as legal guardian of the child.

24. It is so ordered.

DATED IN NAIROBI THIS 6TH DAY OF MAY, 2022MAUREEN A ODEROJUDGE