[2023] KEHC 19279 (KLR)

In re Baby TIO (Adoption Cause 16 of 2018) [2023] KEHC 19279 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19279 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause 16 of 2018

G Mutai, J

June 30, 2023

IN THE MATTER OF BABY TIO APPLICATION FOR ADOPTION ORDER

In the matter of

MAO

Applicant

Judgment

1. MAO , the applicant herein moved this honourable court vide Originating Summons dated August 10, 2018 seeking for orders that: -a.That the requirements of section 158(4) (a) of the Children Act be waived as provided for by section 159(1) of the Act;b.That BK in the said republic be appointed guardian ad litem in this case;c.That the applicant be authorised to adopt Baby TIO and the baby be known as RGWO ;d.That OOW be appointed the legal guardian of the child;e.That the Director of Children’s Department do investigate the case and file a report;f.That the Registrar General be directed to make, in the Adopted Children Register, an entry recording the adoption in accordance with the particulars set out in the schedule attached hereto.

2. This honourable court in its order issued on March 18, 2019, appointed Benson Haraka Katuku the guardian ad litem and directed him to file his report within 14 days. It further directed the Director of Children Services to do a social inquiry and file a report within 21 days. It was ordered that a new legal guardian be proposed in place of Wycliffe Omondi Odero. As a result, the applicant filed an amended Originating Summons dated September 4, 2019 amending prayer 4 replacing OOW with ESM.

3. When the matter came for hearing on December 15, 2020, advocate for the applicant sought leave to file an amended originating summons to enjoin OOW (husband to the applicant) as a co-applicant. The court granted the same. In compliance the applicant filed a further amended originating summons dated March 4, 2022 and filed on March 17, 2022.

4. On July 13, 2022 the applicant’s advocate sought leave to file a Further Amended Originating Summons which the court granted. The applicant filed a Further Amended Originating Summons dated December 16, 2022 and filed on February 27, 2023. The Summons seek the following orders: -a.That the requirements of Section 158(4) (a) of the Children Act be waived as provided for by Section 159(1) of the Act;b.That BK in the said republic be appointed guardian ad litem in this case;c.That the applicants be authorised to adopt Baby TIO and the baby be known as RGWO ;d.That ESM be appointed the legal guardian of the child;e.That the Director of Children’s Department do investigate the case and file a report; andf.That the Registrar General shall make in the adopted Children’s Register an entry recording the adoption in accordance with the particulars set out in the schedule attached hereto.

5. The application is supported by the averments in the statement in support thereof filed on February 27, 2023. The applicant is an adult Kenyan citizen born in 1988. The motivation to adopt the baby has been ignited by the desire to be a mother. The applicant is a business lady.

6. The child herein is estimated to be born on August 4, 2017 at St. Elizabeth Hospital, Mukumu to Ms. Sarah Mugusa. The biological mother was a minor at the time the child was born. The biological father was a close relative of the biological mother. The mother gave up the child for adoption on cultural grounds; it is considered a taboo among the Luhya for close blood relatives to have children together. Ms. Mugusa willingly surrendered the child for placement and gave her initial consent on August 6, 2017. She also signed Certificate of Acknowledgement on the same date. The child was committed into the legal custody of Springs of Life Children’s Home for care and protection vide Protection and Care Case No 195 of 2017 at the Kakamega Children’s Court.

7. In its meeting held on November 15, 2017 the case committee of Kenya Children’s Home Adoption Society declared the child free for adoption and a Certificate S/No 1384 was issued.

8. Benson Haraka Katuku was on March 2, 2023 appointed guardian ad litem. The Director of Children Services and guardian ad litem were directed to file their respective social inquiry reports within 30 days.

9. Preceding the hearing the County Coordinator for Children Services, Mombasa filed a report dated June 1, 2023 recommending the adoption. Equally the guardian ad litem filed his report on April 13, 2023 recommending the adoption. The adoptive society, through their staff Pauline Kitema who appeared in court on April 27, 2023, recommended the adoption and referred the court to report dated March 5, 2019. The director of children services through Caren Njeri Mwangi on June 15, 2023 in her evidence informed the court that they were recommending the adoption and referred to their report filed on June 14, 2023. The guardian ad litem as well recommended the adoption and referred to his report dated April 13, 2023.

10. During the hearing the applicant urged the court to allow the application to enable her adopt the baby and stated that she understood the consequences of adoption and that it is permanent.

11. I have considered the Originating Summons herein, the supporting documents and evidence by various witnesses and the issues that emerge for determination are: -1. whether the baby is available for adoption;2. whether the applicant is fit to adopt the baby; and3. whether the proposed adoption is in the best of the child.

12. The child herein was given up for adoption by the mother as she was a product of an incestuous relationship. She was estimated to have been born on August 4, 2017 at St. Elizabeth Hospital, Mukumu to Ms. Sarah Mugusa. The said mother willingly surrendered the child for placement and gave her initial consent on August 6, 2017. She also signed a certificate of acknowledgement on the same date. The child was committed into the legal custody of Springs of Life Children’s Home for care and protection vide Protection and Care Case No 195 of 2017 at the Kakamega Children’s Court. Therefore, the need for consent pursuant to Section 158 and 159 is dispensed with.

13. The child is above 6 weeks and below 18 years which provision falls within the age bracket of any adoptive baby pursuant to Section 156 of The Children Act, 2001. Further Section 157 does recognize 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.

14. I must at this juncture point out that this application was filed in 2018. Under the Children Act, 2001. I will therefore rely on the said Act pursuant to paragraph 6(1) of the Seventh Schedule (Transitional Provisions) of the Children Act, 2022, unless the latter Act specifically provides otherwise.

15. Concerning the applicant suitability, she is a Kenyan citizen thus qualifying this to be a local adoption. She is 35 years old which places her under the age bracket of not less than 25 years or more than 65 years for an adoptive parent in compliance with Section 158 of the Children’s Act. The applicant has been described as financially stable as the applicant is a business lady with various assets. She is a loving, caring, Christian lady with no criminal record. Since the placement of the minor in her custody the child has fully bonded with her. She understands the consequences of adoption and that it is permanent. She appreciates the role of a parent and admit she will treat the baby like her biological child.In re JNA [2018] eKLR L.A.Achode, J stated that,“I have perused the entire record and find that the Applicants meet the social parameters that are considered relevant to their taking on parental responsibility and custody of the child in this matter, on a permanent basis as would be conferred by the adoption order sought.”It’s my view that the applicant meets the necessary requirements to adopt the baby.

16. On the question of whether the adoption is in the best interests of the baby, guidance can be drawn from article 53(2) of theConstitution and section 4(2) and (3) of The Children’s Actwhich underscores the best interests of a child principal as the primary consideration before making any decision concerning a baby.Am also guided by the decision of Nyakundi, J in the case of InRe B (Baby) [2018] eKLR where he stated 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 provision is of the best interest of that very child…It is that family unit that theConstitution contemplates under Article 45 which also has to take responsibilities in fulfilling the obligations enjoined in Article 53 of the same constitution.”

17. The child herein was surrendered willingly for adoption by her mother Sarah Mugusa. She is like any other child in need of parental care and guidance. She needs basic necessities like food, shelter, education and clothing. She has fully integrated with the applicant. It is obviously in the best interests of the child that this adoption application be allowed.

18. Accordingly, the Originating Summons is allowed with orders that:-a.The consent of the biological parents is dispensed with;b.The applicant, MAO is authorized to adopt Baby TIO who shall henceforth be known as RGWO ;c.ESM is appointed as the Legal Guardian of RGWO in the event the applicant become deceased, is incapacitated or otherwise unavailable before RGWO attains the age of eighteen years;d.The Registrar General is directed to enter the adoption order made herein, and estimated birth date of the RGWO as August 4, 2017, in the Adopted Children Register; ande.The guardian ad litem is discharged.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30THDAY OF JUNE 2023GREGORY MUTAIJUDGEIn the presence of:-No appearance for the applicantMr. Arthur Ranyundo – Court Assistant