[2022] KEHC 14902 (KLR)

In re Baby RKM (Adoption Cause E178 of 2022) [2022] KEHC 14902 (KLR) (Family) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14902 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E178 of 2022

MA Odero, J

October 11, 2022

In the matter of

Wanjiku Kabiru

Petitioner

Judgment

1. Before this court is the amended originating summons dated 28th September 2022 by which the applicant seeks the following orders:-“(a)Spent(b)Spent(c)Spent(d)That the applicant be authorized to adopt Rayn Kariuki Mwaura and the said child be known as Rayn Kariuki after the adoption.”

2. The application was supported by the statement of even sworn by the applicant. The matter was canvassed by way of viva voce evidence on the virtual platform.

3. The applicant WK is a single mother of two (2) sons. The applicant resides in the USA where she works as a medical practitioner. She applies to adopt the subject child who is a fourteen (14) year old boy and is a nephew to the applicant. The applicant explains that she wishes to assist the child’s mother who is struggling to raise the child following her divorce from the child’s father who is the applicants brother.

4. The applicant confirmed that she understood the legal implications of an adoption order. She undertook to accord to the subject child all rights due to a biological child including the right to inherit.

Analysis and Determination 5. I have considered this application, the reports filed in court as well as all the evidence adduced in support thereto. The prerequisites for adoption are set out in Section 184 (1) of the Children Act 2002 which provides –“184(1) A person shall not commence any arrangements for the adoption of a child unless –a.the counsel in accordance with the rules has declared the child free for Adoption.b.the child has attained the age of six weeks.”

6. Change Trust a registered adoption agency have annexed to their report a copy of their certificate Serial Number XXXX dated 3rd December 2021 declaring the Child Free For Adoption.

7. The Subject child is a fourteen (14) year old boy child. A copy of his Birth Certificate Serial Number XXXX is annexed to the summons (Annexture WK 1). The child is therefore much older than the six (6) week age limit provided for in the law. I therefore find that all the legal prerequisites for adoption have been met.

8. The duty of this court is to analyze the evidence on record to determine whether the applicant is a suitable adoptive parent. The applicant is a Kenyan citizen. She has annexed to the summons a copy of her Kenyan Passport Number A1610209 (Annexture ‘WK-3’).

9. The applicant is a medical doctor currently living and working in the USA. Annexed to the summons is a letter written by CN of Mt Carmel St Ann’s Medical Centre in Ohio, USA confirming that the applicant is Board Certified to practice Obstetrics, Gynecology and Maternal Fetal Medicine in Ohio, USA (Annexture WK ‘10’).

10. The applicant is a Christian and intends to raise the child in the Christian Faith. She was examined by a doctor and found to be physically fit. The applicant is financially stable earning an income equivalent to approximately Kshs 1. 0 million per month.

11. The applicants family are supportive of her intention to adopt the child. She has appointed her brother RW as the legal Guardian for the child. The said legal Guardian has signed a consent dated 28th September 2021 confirming his willingness to act as legal Guardian. Based on the evidence availed to court, I am satisfied that the applicant is a suitable adoptive parent.

12. The subject child is the nephew of the applicant being a son to the applicants brother. The child’s parents are divorced as evidenced by Decree Absolute dated 23rd May 2018 issued by the Chief Magistrates Court in Nairobi Divorce Cause No 192 of 2015.

13. Section 186(8) of the Children Act 2022 provides for consents to adoption 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)on the application of one of the spouses, the consent of the other spouse; and(c)in the case of a child who has attained the age of ten years, the child himself or herself.

14. The child’s biological Father PMK has signed an affidavit of consent dated 11th October 2022 giving his consent to the adoption. The Father testified in court. He confirmed that the Applicant is his sister and confirmed his consent to the adoption.

15. Similarly the child’s biological mother Sylvia Kabura has sworn an Affidavit of consent dated 11th October 2022 giving her consent to the adoption. The mother also testified in court and confirmed that she has voluntarily given her consent for the adoption of her child by the applicant. Both parents confirmed that they understood that an adoption order once made was permanent and irreversible. I am satisfied that the requisite consents have been obtained in line with section 186(8)(a) of the Children Act 2022.

16. Section 186(c) of the Children Act requires that a child who is over the age of ten (10) years must himself/herself give consent to the adoption.

17. The child who is now aged fourteen (14) years old is in a position to speak for himself. Annexed to the summons is the letter of consent dated 21st December 2021 (Annexture WK’7’) written by the child. The child testified in court. He confirmed that the Applicant who is her paternal aunt is well known to him. The child confirmed his consent and willingness to be adopted by the applicant. Accordingly, I am satisfied that the Childs consent has been obtained as required by section 186 (c) of the Children Act 2022.

18. Section 8(1) of the Children Act 2022 provides as follows:-“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;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.”(own emphasis)

19. This is a Kinship adoption. The child will remain within the same family unit and will retain contact and communication with his blood relatives. The applicant is a person well known to the child and with whom the child is comfortable. The child currently lives with her divorced mother who is struggling to raise him. I am satisfied that this adoption will serve the best interests of the child.

20. I have perused the reports filed by the Adoption Agency, the Guardian Ad Litem and the Director Childrens Services. All three reports are positive and all recommend the adoption.

21. Finally, I do allow this application and make the following orders:-1. The Applicant WK is authorized to adopt the child RK.2. Upon adoption the child shall be known as RK.3. The Registrar General is directed to make the relevant entry in the Adopted Childrens Register.4. The child is a Kenyan Citizen and is entitled to all the rights and privileges thereto.5. RW is appointed as the legal Guardian of the child.

DATED IN NAIROBI THIS 11TH DAY OF OCTOBER, 2022. ......................................MAUREEN A. ODEROJUDGE