[2023] KEHC 25752 (KLR)

In re Baby RW (Minor) (Adoption Cause E089 of 2023) [2023] KEHC 25752 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25752 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E089 of 2023

PM Nyaundi, J

November 10, 2023

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001

IN THE MATTER OF ADOPTION OF RW (MINOR)

AND

IN THE MATTER OF AN APPLICATION FOR ADOPTION BY AWN

In the matter of

AWN

Applicant

Judgment

1. This is a kinship adoption as the applicant is an aunt to SWM the mother of the minor RW (Minor), whom she seeks to adopt vide Originating Summons dated 23rd May 2023. She is currently single and not in any relationship.

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 residing in The United States of America. She avers that she has the financial means and capability to take care of the Child. The applicant is a nurse at [particulars withheld]. She fully understands the consequences of an adoption order.

4. The minor was born on 25th November 2013 as per the birth certificate annexed serial number [particulars withheld] to SWM and JMW . At this time her mother was only 18 years old and therefore could not take care of the child, was a student and not married to the child’s father.

5. The child was brought up by her mother, with the support of the extended family and especially the applicant. The applicant pays their rent, her school fees as well as the minor’s mother school fees. She is currently a grade four pupil at [Particulars withheld].

6. The child’s biological mother and biological father approached KKPI Adoption agency and after being taken through the memorandum for parents offering their child for adoption, they gave their individual consent. The child was therefore declared free for adoption on 26th October 2022.

7. The biological mother and father were present in court and stated that they understood the adoption, they consented to the adoption. They have signed dated 2nd May 2023. The minor was also present in court she stated she understood what adoption means and consented to the same.

8. Prior to the hearing of the adoption application, KKPI declared the child free for adoption after assessing the child. On 13th July 2023 the Court appointed a Guardian Ad litem PS .

9. The Guardian Ad Litem, PS was present in Court. She confirmed that he assessed the Applicant. She presented her report dated 25th September 2023. She recommends that the Applicant be allowed to adopt the minor.

10. An officer of the Department of Children Services, Winfred Ikinya prepared a report dated 23rd October 2023. The report established that the child was born on 25th November 2013 as per the birth certificate annexed serial number [particulars withheld] to SWM and JMW . At this time her mother was only 18 years old and therefore could not take care of the child, was a student and not married to the child’s father.

11. The child was brought up by her mother, with the support of the extended family and especially the applicant. The applicant pays their rent, her school fees as well as the minor’s mother school fees. She is currently a grade four pupil at [Particulars withheld]

12. The proposed Legal Guardian JWN attended court and confirmed she is willing to take up the role of legal guardian. She is a cousin of the applicant.

13. This is a kinship adoption under Section 193 of the Children Act, 2022 and Annex Cat Page 153 of the guidelines for Alternative family care of Children in Kenya, 2014 which defines Kinship adoption as adoption of a child by a person who is a relative of the child.

14. 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.(1)The Court may make an adoption order on application by-(a)A sole applicant; or(b)Two spouses jointly.(2)The Court shall not make an adoption order in any case unless—(a)The applicant has attained the age of twenty-five years, but is not above the age of sixty-five years: and(b)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.

15. The Applicant is aged 46 years.

16. 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

17. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child.(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.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;

18. 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. Accordingly, I allow the prayers sought in the Originating Summons dated 23rd May 2023 and order as follows:I.The Applicant AWN be allowed to adopt RW (Minor).II.The Child is to be known as RWW (Minor) .III.The Child be presumed to be a Kenyan citizen by birth born on 25th November 2013 at Nakuru.IV.JWN is hereby appointed as legal guardian of the Child.V.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VI.The Director of Immigration is authorized to issue the child with a Kenyan passport.VII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 10TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of;Ms. Ambaka for the Applicant