[2022] KEHC 14899 (KLR)

In re baby SAS (Adoption Cause 5 of 2020) [2022] KEHC 14899 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14899 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause 5 of 2020

JN Onyiego, J

November 4, 2022

IN THE MATTER OF BABY SAS AND

In the matter of

SFA

1st Applicant

FSGM

2nd Applicant

Judgment

1. By originating summons dated June 5, 2020, the applicants herein SFA and FSGM hereafter the applicants moved this court for orders that;a.The requirements of section 158 (14) of the Children Act be waived as provided for by section 159 (1) of the Act.b.SSR be appointed guardian ad litemin this casec.The applicants be authorized to adopt SAS a minor and the minor be known as SAMd.That FMO be appointed the legal guardian of the child.e.That the Director of children’s department to investigate the case and file a reportf.That the Registrar General do make an entry in the adopted children’s register recording the adoption in accordance with the particulars set out in the section attached to.

2. The application is based on grounds stated in the statement of particulars sworn on June 5, 2020. The applicants are Kenyan citizens born 1975 and 1982 respectively. However, from the record, they are currently residing in UK.

3. Regarding the child born on [particulars withheld], he is the biological child to SFA and ASM with whom she divorced long time ago. That the applicants herein got married the year 2020 and the adoptive father took full responsibility over the subject herein.

4. The mother to the applicant gave her consent on July 26, 2019 for her son to be adopted by the second applicant her current husband while the biological father ASM gave his consent through an affidavit sworn on 20th August, 219 . The minor having been interviewed by Little Angels adoption society did express his willingness to be adopted by the step father ( 2nd applicant)

5. The adoption process having commenced, Little Agnes adoption committee did declare the child free for adoption on August 21, 2019 and adoption certificate S/No 002119 to that effect issued.

6. According to the applicants, the purpose for these adoption is to award the subject herein full legal rights like the rest of the children so as to identify himself to the bigger family.

7. Upon institution of these proceedings, SSR was on June 17, 2021 appointed as guardian ad litem. The Director Children Services was directed to file a social enquiry report within 30 days. The guardian ad litem was equally required to file his within the same period.

8. Consequently, the Director Children Services through Mombasa Children Office filed their report on November 15, 2021 recommending the adoption. Equally, the guardian ad litem filed his on November 16, 2021 recommending the same. Little Angles also filed their report on August 21, 2019 approving the same.

9. During the hearing, the applicants pleaded with the court to allow the adoption. They confirmed that they understood the consequences of adoption process. The subject now aged 15 years gave evidence thus expressing his opinion and willingness to be adopted. He referred to the adoptive father as his father whom he would like to stay with. I have considered the application herein, testimonies from various witnesses and stake holders.

10. The only issues which crystallize for determination are;a.Whether the subject herein is qualified to be adopted;b.Whether the applicants are suitable to adopt the subject and;c.Whether, the adoption is in the best interest of the child.

11. The minor herein is the biological child to the 1st applicant one SFA who divorced with the biological father to the child while the child was very young. She subsequently got married to the 2nd applicant who took over the minor as his son. The biological father has no objection as he has signed a consent pursuant to section 158 and 159 of the repealed Children Act now section 186 (8) of the current Children Act 2022.

12. The subject himself is ready and willing to be adopted. Section 157 of the repealed Children’s Act now section 185 (1) of the Children Act 2022, does recognize that any child who is resident within Kenya may be adopted whether or not the child is a Kenyan or was born in Kenya. I have no doubt the child is qualified to be adopted.

13. Regarding the adoptive parents’ suitability, they are both aged above 25 and below 65 years which is the legally recognized age bracket for the adoptive parents pursuant to section 158 of the Children Act.

14. The child has fully bonded with the step farther the adoptive father herein. He has not stayed with the biological father since the mother divorced with him hence his only familiar home is that of the applicants.

15. The applicants have been described to be financially stable people and that the adoptive father loves the subject herein. I have no doubt the applicants are suitable to adopt the baby.

16. As to whether the adoption is in the best interest of the child, article 53 (2) of the Constitution and section 4 (2) (3) of the Children Act are clear. The two provisions does underscore the primacy of the best interest of a child as a factor to be considered when making any decision affecting a child. It is clear that since the 1st applicant divorced her former husband the minor has been staying with her together with the second applicant until they left for UK where they are now residing.

17. The minor has fully bonded with the 2nd applicant and indeed it is the 2nd applicant who is taking full parental responsibility. The only home the minor is known to is that of his grandmother and the second applicant. There is need to interact with his siblings to eradicate any social stigma of being fatherless.

18. For all purposes and intents, the adoption herein is in the best interests of the minor for the sake of his generational identity and also the desire to get fatherly love and guidance. Accordingly, the application is allowed with orders that;a.The applicants herein are authorized to adopt baby SAS who henceforth shall be known as SAMb.That the child’s date of birth shall be [particulars withheld].c.That the guardian ad litem is dischargedd.That the Registrar General is directed to enter the adoption in the adopted children’s register.e.That FMO is appointed as the legal guardian of the child in the event of any eventuality befalling the applicants.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF NOVEMBER, 2022. ........................J. N. ONYIEGOJUDGE