[2015] KEHC 7578 (KLR)
The court found that the adoption process was fundamentally flawed because the child was placed with the applicants before being declared free for adoption, in direct contravention of section 156(1) of the Children Act, 2001. Additionally, the committal order to the children’s home was dated a year before the...
Source-derived case information.
- Citation
- [2015] KEHC 7578 (KLR)
- Parties
- Applicant: Z M O; Applicant: E K O; Respondent: Director of Children’s Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 79 of 2014
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- application_declined
- Judges
- AO Muchelule, LA Achode
- Legal Topics
- Adoption Procedure, Best Interests of Child, Children Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Z M O
Applicant
E K O
Applicant
Director of Children’s Services
Respondent
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the adoption process complied with section 156(1) of the Children Act, 2001.
- 2 Whether the best interests of the child would be served by granting the adoption despite procedural irregularities.
Ratio Decidendi
The court found that the adoption process was fundamentally flawed because the child was placed with the applicants before being declared free for adoption, in direct contravention of section 156(1) of the Children Act, 2001. Additionally, the committal order to the children’s home was dated a year before the child’s birth, indicating procedural irregularities. While the court acknowledged the best interests of the child and the bond formed with the applicants, it held that granting the adoption would amount to condoning an illegal process. The statutory requirements for adoption are mandatory, and the court cannot overlook their breach, even in the face of compelling welfare...
Court Disposition
application_declined
Orders
- The originating summons for adoption is declined.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
ADOPTION CAUSE NO. 79 OF 2014 (OS)
IN THE MATTER OF THE CHILDREN ACT NO. 8 OF 2001
AND
IN THE MATTER OF BABY S.A.O.
AND
IN THE MATTER OF AN APPLICATION FOR ADOPTION BY
Z M O
AND
E K O
JUDGMENT
The applicants Z M O and E K O are a married couple, Kenyan citizens, who seek to adopt child S A O. They have four biological children, all daughters, and are looking for a son. The 1st applicant is a businessman and the 2nd applicant is a nurse employed by [particulars withheld].
Child S A O. is currently 8 years old. He is reported to have been born on 10th February 2007 and abandoned on the same day at Thika District Hospital by his mother who left no details of her identity. The matter was reported to Thika Police Station and recorded under OB NO. 11/15/3/2007 and the child referred to Mama Ngina Children’s Home for care and protection.
This case does not add up. This is because the formal committal to the Home by the Children’s Court at Thika is indicated to have been done on 2nd April 2006. That would be a year before the child was born and abandoned.
Secondly, the child was declared free for adoption by the Child Welfare Society vide certificate No. [particulars withheld] on 29th November 2013. There is a foster care agreement dated 15th June 2007. This shows that the child was placed with the applicants before it was declared free for adoption. This offended section 156(1) of the Children Act 2001 which provides that:-
“156(1). No arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with the rules prescribed in that behalf.”
It is an offence to contravene this provision.
I am aware that under section 4 of the Children Act, the Court has to consider the best interests of the child as being the first and paramount consideration. The court is called upon to adopt a course of action that is calculated to safeguard and promote the rights and welfare of the child in question. Child S A O. has lived with the applicant since 2007, and the report of the Director of Children’s Services filed on 11th December 2014 shows that it has bonded well with the family. However, to order the adoption would be to countenance the illegal process that has been undertaken as shown in the foregoing. This is why, quite regrettably, the originating summons shall not be granted. The adoption request is hereby declined.
DATED at Nairobi this 30th day of July 2015
A.O. MUCHELULE
JUDGE
DELIVERED at Nairobi this 31st day of July 2015
L. ACHODE
JUDGE