[2023] KEHC 25754 (KLR)

In re Baby SM (Adoption Cause E115 of 2023) [2023] KEHC 25754 (KLR) (Family) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25754 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E115 of 2023

PM Nyaundi, J

November 17, 2023

In the matter of

CWM

1st Applicant

EMM

2nd Applicant

Judgment

1. The Applicants, CWM and EMM vide Originating Summons dated 26th May 2023 have made an application for the adoption of Baby SM the child herein. The applicants got married on 17th June 2017 and have attached a copy of the marriage certificate serial number 226xxx. They wish to adopt the baby to thank God for His many blessings, and change the life and future of a child who need of a family. The applicants has three biological children (JM born on 11th March 2011, WW born on 24th May 2016 and LMW born 27th October 2017).

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 26th of October 2023.

3. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The applicants are business people running Chema Steel and Hardware Ltd. They have had custody of the child since 12th December 2022. They reside in [Particulars Witheld], Ruiru. They fully understand the consequences of an adoption order.

4. The child is estimated to have been born on 3rd September 2020. The minor was abandoned on 2nd December 2020 around 10pm in unfinished building within Kayole Estate next to Neema Supermarket. She was rescued by a Good Samaritan namely JNN of ID number 1276xxxx and telephone 0723316xxx/0716084xxx. The Good Samaritan narrated that, on the night of 2nd December 2020 at around 10 o’clock, as she was returning home from work, she heard a voice of a baby crying in a nearby uncompleted building.

5. She went further to have a look and find out that it was indeed a female child. She rescued the minor and reported the matter to Kayole Police Station the following day. The Baby was approximately three months old during the time of abandonment. On 3rd December 2020, the matter of abandonment was reported to Kayole Police Station and booked vide OB NO.27/3/12/2020. On 3rd December 2020, Baby Schacola was admitted at Imani Children’s Home for care and protection. She was approximately three months old.

6. On a witness statement dated 3rd December 2020, a Good Samaritan namely JNN of phone number 0723316xxx/0716084xxx narrated the circumstances that lead to abandonment. She further stated that she doesn’t know the child, neither does she knows her Kin. On 4th March 2021, the Sub- County children’s officer in Embakasi requested the baby be committed to Imani Children’s Home for care and protection for a period of three years.

7. On 24th March 2021, Baby Schacola was committed to Imani Children’s Home through the Resident Magistrate court in Nairobi for care and protection vide care and protection no 142 of 2021 for a period of three years. On 8th June 2022, Kayole Police Station issued a second police letter indicating that their efforts to trace the mother or kindred have been fruitless.

8. On 22nd November 2022 at 2:59pm, Buckner Kenya adoption services made an effort to contact the Good Samaritan one JNN of ID number 1276xxxx and telephone number 0723316xxx/0716084xxx. Jackline confirmed to us that she indeed rescued the minor and that she has never heard anyone claiming her since rescue. Imani Children’s Home further reports that during her stay in the institution that no relative had turned up to claim the child, and neither have they received any information from the police department concerned regarding any claimants.

9. Prior to the hearing of the adoption application, Buckner Kenya Adoption Services prepared and filed a report dated 10th July 2023 and issued a certificate serial No. 0626 declaring the child free for adoption. On 13th July 2023 the Court appointed a Guardian Ad litem JN

10. The Guardian Ad Litem, JN was present in Court and presented his report dated 5th October 2023. He confirmed that he visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. He recommends that the Applicants be allowed to adopt the Baby. The child was present in court.

11. An officer of the Department of Children Services, Ezekiel Kimani prepared a report dated 14th August 2023 and countersigned by Mary Atati. The report establishes that the child was born on 3rd September 2020. The initial police letter from Kayole Police Station is dated 3rd December 2020. It indicates that the child was found abandoned in a vacant house within Kayole Junction by a Good Samaritan. She was then placed at Imani Children Home for further care and protection. Nairobi Children Court formally committed the child into Imani Children Home through protection and care case number 142 of 2021 for a period of 3 years in a committal dated 24th March 2021.

12. The Report further documents that the final police letter from Kayole Police Station dated 8th June 2022 and it indicates that no relative was ever found and that no one claimed the child. The child was placed under the care and control of the applicants on 12th December 2022 pending adoption.

13. The proposed Legal Guardian SNM attended court and confirmed she is willing to take up the role of legal guardian. The 1st Applicant is her brother.

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 sole applicant; orTwo persons 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 Applicants are aged 41 years and 36 years respectively.

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 made the 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 26th May 2023 and order as follows:I.The Applicants CWM and EMM be allowed to adopt Baby SMII.The Child to be known as MNW.III.The Child be presumed to be a Kenyan citizen by birth born on 3rd September 2020 at Nairobi County.IV.SNM is hereby appointed as the legal guardian of Child.V.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VI.The Director of Immigration authorised to issue the child with a Kenyan passport.VII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 17TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Ms Kimenyi for ApplicantsSyvia Court Clerk