[2023] KEHC 25217 (KLR)

In re Baby RP (Minor Child) (Adoption Cause E014 of 2022) [2023] KEHC 25217 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEHC 25217 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause E014 of 2022

G Mutai, J

October 31, 2023

IN THE MATTER OF THE CHILDREN ACT, 2022 AND IN THE MATTER OF BABY RP (MINOR CHILD) AND IN THE MATTER OF AN APPLICATION FOR ORDERS OF ADOPTION OF BABY RP (MINOR CHILD) BY TMONAO (THE APPLICANTS)

Between

TMO

1st Applicant

NAO

2nd Applicant

and

The Change Trust

Respondent

Judgment

Introduction 1. The joint applicants are a Kenyan couple born in 1972 and 1982, respectively. The applicants got married in 2010. Their marriage has not been blessed with biological issues. The 1st applicant, however, has two adult daughters, LA and GJ, from a previous relationship. The joint applicants wish to adopt Baby RP (minor child).

2. In order to do so, the joint applicants filed the Originating Summons dated 18th July 2022, on 20th July 2022, vide which they sought the following orders:-1. That WOP and EOO be appointed guardians ad-litem in this case;2. The applicants, TMO and NAO be authorized to adopt RP (minor child);3. The minor child RP be declared a Kenya citizen;4. Pursuant to the provision of section 187 of the Children Act, 2022, this honourable court be pleased to dispense with the requirement of consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;5. That the name of the minor child to change from Raymond Pendeza to ROT;6. That the Children Officer to prepare and file Child Social Report;7. That the Registrar General be directed to enter the name of the child in the Adopted Child Register in the prescribed form; and8. The costs of this Summons be costs in the cause.

3. Baby RP was abandoned on 23rd May 2017, immediately after birth, at [particulars withheld], in Kisauni, Mombasa County. He was rescued by a MA. The child was thereafter taken to Kiembeni Police Station. The incidence was recorded in the National Police Service Occurrence Book as entry number OB XXXX/2017. The child was thereafter taken to the Coast General Hospital where he received treatment for neonatal sepsis. He was discharged on 15th June 2017 to Baby Life Rescue Centre. On 22nd June 2017 Baby Raymond Pendeza was committed to the care of Baby Life Rescue Centre vide Care and Protection Cause No. 259 of 2017 for a period of 3 years.

4. The applicants are both Kenyan adult citizens of sound mind. They profess the Christian faith and reside at [particulars withheld], Mtwapa, Kilifi County, within the Republic of Kenya. The child is of the African race and is presumably a Kenyan. The child was declared free for adoption by the Change Trust, a registered adoption society.

5. In their application, the applicants averred that they have no criminal record, have the requisite financial ability to bring up the child, enjoy the support of their families and are emotionally and physically fit to take care of the child.

6. The applicants attached various documents to their application, which this court has read and considered.

7. The joint applicants filed a chamber summons application dated 29th May 2023, vide which they sought to have WOP and EOO appointed as the joint guardian-ad-litem of the child.

Court Proceedings 8. The chamber summons application dated 29th May 2023 came up for hearing on 6th July 2023. Upon hearing the testimonies of WOP and EOO and being satisfied with their suitability, I appointed them as the joint guardian ad litem of Baby RP. I directed them to prepare the requisite report within 30 days. I also directed the Director of Children Services, through the Children's Department Mombasa, to prepare and file the social inquiry report within the same period of time. I also set down this case for hearing on 18th September 2023.

9. The Court heard a total of 6 witnesses on the 11th, 18th and 25th of October 2023. All the witnesses supported the adoption application. In their testimony, the joint applicants averred that they knew the consequences of adoption and nevertheless wished to adopt Baby RP.

10. Upon the conclusion of the case I fixed this matter for judgment on 18th October, 2023.

Analysis and Determination 11. I have considered the application herein, the documents in support and evidence of the various witnesses and the issues that emerge for determination by me are whether the baby is available for adoption, whether the applicants are fit to adopt the baby and most importantly whether the adoption is in the best of the child.

12. I have already set out the circumstances under which the child was found. The child was abandoned by the mother at birth. Nobody has come forward to claim the child. The need for consent pursuant to sections 186(8) and 187 of the Children Act, 2022 is therefore dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of theChildren’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”

13. Regarding the baby’s nationality, it is clear from the evidence adduced that he was found abandoned at [particulars withheld], Kisauni within Mombasa County on the day of his birth. Article 14(4) of Constitution recognizes that a child who is less than eight years of age, and whose nationality and parents are not known, is presumed to be a Kenyan citizen by birth. In view of this provision, the child herein is presumed to be a Kenyan citizen by birth.

14. In terms of age, the child is above six weeks and below 18 years which provision falls within the age bracket of any adoptive baby pursuant to Section 184 (b) of the Children Act, 2022. Further, Section 185(1) does recognize that any child who is resident in Kenya, whether born in Kenya or not, to be eligible for adoption. I have no doubt the child is fit for adoption.

15. Concerning the joint applicants’ suitability, they are Kenyan citizens aged 51 and 41 years, respectively, which places them under the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. The applicants have been described as financially stable. They have no criminal record. Since the placement of the minor into their custody, the child has fully bonded with them. They also understand the consequences of adoption and know that once an adoption order is made, it is permanent. They appreciate the role of a parent and admit they will treat the baby like their biological child.

16. Consequently, I have no doubt that they have met the necessary requirements to adopt the baby. I am guided by the case ofIn re B (Baby)[2018] eKLR, where the court stated:-“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bringing up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”

17. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.

18. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”

19. The child herein was found abandoned. He therefore needs basic necessities like food, shelter, education and clothing. He has fully integrated with the applicants. It is obviously in the best interests of the child that this adoption application be allowed. I am guided by the case of In re IK (Child)[2020] eKLR, where the court stated:-“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As Constitution and the law state, in all matters concerning a child, the best interests of the child are paramount.”

Disposition 20. Based on the foregoing, the Court issues the following orders:-1. The child Baby RP is hereby declared a Kenya Citizen by birth pursuant to Article 14(4) of the Constitution of Kenya, 2010 and section 7(1) of the Children Act, 2022;2. The requirement of the consent of the biological parents of the child to the adoption under section 186 of the Children Act, 2022 is hereby dispensed;3. The applicants TMO and NAO are hereby authorized to adopt Baby RP who shall henceforth be called Raymond Otieno Tom;4. WOP and EOO are hereby appointed as the legal guardians of Baby ROT in the event that the joint applicants become deceased or are otherwise permanently unable to take care of Baby ROP before he attains the age of majority;5. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the estimated date of birth of the child as being 23rd May 2017 in the Adopted Children Register; and6. The guardians-ad-litem WOP and EOO are hereby discharged as such.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 31ST DAY OF OCTOBER 2023 AT MOMBASA VIA MICROSOFT TEAMS...........................................GREGORY MUTAIJUDGEIn the presence of: -Ms. Musyoki for the joint applicantsMr. Arthur Ranyondo – Court Assistant