[2023] KEHC 25757 (KLR)

In re Baby RJ (Adoption Cause E108 of 2023) [2023] KEHC 25757 (KLR) (Family) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25757 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E108 of 2023

PM Nyaundi, J

November 3, 2023

In the matter of

RKS

Applicant

Judgment

1. The Applicant, RKS vide Originating Summons dated 2nd June 2023 has made an application for the adoption of BABY RKS the child herein. The applicant is not married. She has children of her own (OGSW, 13 years and OGSE, 7 years). Her desire to have another child is motivation to adopt.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 26th of October 2023.

3. The Applicant is Kenyan Citizen and of the Christian faith. She avers that she has the financial means and capability to take care of the Child. The applicant is lawyer she works with Save the children. She has had custody since 24th December 2022. She resides in [particulars withheld], Nairobi County. She fully understands the consequences of an adoption order.

4. The child was born on 29th June 2021 at [particulars withheld] to one SWW who was minor at the time. The child was rescued after the mother who was a form 2 student at the time willingly gave up the child for adoption through KKPI Agency. The grandmother also agreed to child being given up for adoption. Both have written their consent marked as RKS-4. The child gained admission at New Life Home Trust where the child was admitted for care and protection.

5. Prior to the hearing of the adoption application, change trust prepared and filed a report dated 6th October 2022 and issued a certificate serial No. 00581 declaring the child free for adoption. On 24th July 2023, the Court appointed Guardian ad litem SWN.

6. SWN the Guardian ad litem was present in court, she presented a report dated 25th September 2023 she confirmed to the court that she had visited the applicant’s home. The child was well taken care of and the applicant bonded well with the child. She recommends the adoption. The child was present in court.

7. An officer of the Department of Children Services, ezekiel kimani attended court and presented a report dated 10th August 2023. The report was countersigned by Mary Atati. The report established that the child was born 25th June 2021. The biological mother in a handwritten letter on 2nd July 2021, expressed her intention to offer the child for adoption given that her own mother was not in a position to provide for her and her child. The mother was a minor at the time. Her mother too, expressed her consent on the same date to have the child offered for adoption. The child was then placed in New Life Home Trust pending adoption.

8. The proposed Legal Guardian NMS attended court and confirmed he is willing to take up the role of legal guardian. He is the applicant’s brother.

9. The two sons of the Applicant were both present in Court and expressed their desire to have the minor as their sister. They welcome her to the family. The Court observed that the minor looked happy and had clearly bonded well with the family members. She recognised the Applicant as her mother

10. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides. The court may make an adoption order on application by-(1)(a)Sole applicant; or(b)Two spouses jointly.(2)The court shall not make an adoption order in any case unless-i.the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; andii.The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

11. The Applicant is 43 years.Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child.

12. This principle is restated Under Section 8 of the Children Act, 2022 which provides;Best interests of the child. In all actions concerning children, whether undertaken.(1)By public or private social welfare institutions, courts of the law, administrative authorities, or legislative bodies-(a)The best interests of the child shall be the primary consideration;(b)The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is madeThe order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

15. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants.

16. Accordingly, I allow the prayers sought in the Originating Summons dated 2nd June 2023 and order as follows:I.The Applicant RKS be allowed to adopt BABY RJ.II.The Child is to be known as ITKS.III.The Child be presumed to be a Kenyan citizen by birth born 25th June 2021 at [particulars withheld.]IV.NMS is hereby appointed as legal guardian of ChildV.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VI.The Director Immigration is authorized to issue the child with a Kenyan passportVII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 3RD DAY OF NOVEMBER, 2023. NYAUNDIJUDGEIn the presence of:Kamenju holding brief for Ms Mbugua for the ApplicantSylvia Court Assistant