[2022] KEHC 10625 (KLR)

In re baby VM a.k.a J (Minor) (Adoption Cause E013 of 2021) [2022] KEHC 10625 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10625 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E013 of 2021

MW Muigai, J

June 14, 2022

IN THE MATTER OF THE CHILDREN ACT, 2001 AND IN THE MATTER OF BABY VM a.k.a J (MINOR)

In the matter of

FKM

Applicant

Judgment

1. The Applicant, FKM (“the Applicant”) sought by her application to be allowed by this Court to adopt Baby VM a.k.a J (hereafter “the child”). The 1st Applicant is a teacher by profession. The Applicant has one (1) Adoptive child/daughter MMK whose adoption application was granted in High Court of Kenya at Machakos and concluded on 4th September, 2017. Her desire to be a parent motivated her towards adoption, she has not been blessed with her own biological child and hence she opted for adoption.

2. The child who is the subject of the present adoption proceedings was born on 22nd July, 2017 at Kenyatta National Hospital as evidenced by birth notification number xxxx. The biological mother of the child, VM2, voluntarily offered out her then unborn child for adoption because it was unplanned pregnancy and she was student at [Particulars Witheld] College pursuing her studies and not financially stable to enable her take care of the child. On 20th July, 2017 VM2 (the minor’s mother) was counseled and taken through a memorandum headed “adoption for children explanatory memorandum for biological parents/guardians offering child/ren for adoption” which she understood and signed the certificate of Acknowledgement.

3. After delivery she left the minor at the hospital and later the minor was placed at Thomas Barnardo House as a child in need of care and protection on 4th September, 2017, on admission the minor was named J. The minor was committed to Thomas Barnardo House at the Nairobi Children’s Court on 25th January 2018 vide Protection and Care Case Number xxxx. After six weeks handing over of baby J, VM2 swore and signed the Final Affidavit of Consent on 14/09/2018.

4. The minor was thus freed for adoption by the Kenya Children’s Home Adoption Society’s Case Committee in its sitting of 17th October, 2018 vide Certificate Declaring a Child Free for Adoption of 17/10/2018 Serial No. xxxx issued pursuant to Section 156(1) of the children’s Act 2001.

5. After the Case Committee of 17/10/ 2018 and review visits conducted, the child was placed in the custody of the Applicant on 1st November, 2018 after a successful bonding prior to adoption. The child has since then been in the continuous custody and care of the Applicant.

6. In an Ex-Parte Chamber Summons application filed on 23rd August, 2021, the Applicant sought among other orders, orders from this Court that ENM be appointed as the child’s Guardian Ad Litem, and that the Director of Children’s Services was to investigate the suitability and fitness of the Applicant to adopt the child and submit a report. ENM was appointed Guardian ad Litem on 12/10/2021.

7. The Applicant also sought to have the Court appoint AMM and MJ as Legal Guardians to the child.

8. The Applicant further sought an order that upon adoption the child be known as EMK.

9. Pursuant to Section 156(1) of the Children Act, Kenya Children’s Homes, the relevant Adoption Society, prepared and filed in Court a favorable report in respect of the proposed adoption of the child by the Applicant. Another report in respect of the proposed adoption of the child by the Applicant was prepared by the Director of Children’s Services, and this report was similarly in favor of the proposed adoption. The guardian ad litem, ENM, also filed the statutory report pursuant to Section 160(2) of the Children Act in which she noted that the proposed adoption of the child by the Applicant would be in the best interests of the child.

10. The Director of Children Services through a Report dated 10th February, 2022 in respect of the proposed adoption of the child by the Applicant was prepared by Ms Sarah Solomon the Sub-County Children’s Officer Mwala. The report contains family and professional background information of the Child’s Adoptive Parent. The Applicant is a teacher by profession and was once married but separated due to her inability to conceive and the ex-husband remarried.

11. The Applicant lives in her own three bedroom house at [Particulars Witheld]. On observation the minor has bonded well with the Applicant and the elder sister MMK and the minor is well provided for. The Director of Children Service recommended the adoption as the Applicant has fulfilled all the legal requirements for local adoption, she has proved to be capable of taking on parental responsibilities over the child in this matter, she has been found fit, mentally and health wise to take care of the child. Her family supports the adoption and will aid her. The Applicant is socially and economically able to take care of the child. The child in this matter has been declared free for adoption by a registered Adoption Agency.

12. Kenya Children’s Home Adoption Services filed their report dated 24th February, 2021. On 30th March, 2022 Peter Ndotono – Programme Officer from the Agency appeared in Court and confirmed that the child subject of these proceedings was declared free for adoption on 17/10/2018 and the declaration Certificate is Serial No.xxxx. The Adoptive parent had approached Kenya Children Home Adoption Services on 22nd September, 2017. This is the 2nd Adoption for the Applicant having adopted a girl named (MMK born in the year 2006) on 4th September, 2017. The applicant has a fostered son (GK – aged 28 years old). The relevant home visits and follow-ups were done and the final follow up session was conducted the Agency and recommended the Adoption.

13. The Guardian ad Litem, ENM a teacher by profession appeared in Court on 12th October, 2021 and stated that she has been friends with the Applicant; that the child is in a lovely family and home; that the child is loved; that the Applicant takes good care of the child. The Guardian ad Litem made several visits to the Applicant’s home. On observation, the child has bonded well with the Applicant as well as the entire family The Guardian ad Litem fully recommended the Adoption.

14. All the statutory reports that have been filed in respect of the proposed adoption of the child by the Applicant have recommended that this Court allows the sole Applicant to adopt the child. This Court has evaluated the facts of this adoption. This is a local adoption. It is evident that the Applicant has fulfilled all the legal requirements relative to the adoption of the child.

15. Considering that there is consent of the biological mother offering the minor for adoption by annexed Affidavit of 14/09/2018, this Court has satisfied itself that the Applicant is qualified and able to take care of the child. The Applicant has adopted her 1st child MMK whom the Adoption Agency confirmed from review meetings and visits; the Applicant has performed well and the child adapted and adjusted well. Also her family is in support of this adoption as evidenced by the fact that her brother AMM and his wife MJ have offered themselves and consented to be the Legal Guardians of the minor.

16. The home visits by the guardian ad litem, the Adoption Society and the Director of the Children’s Services established that the Applicant is financially and socially stable and has emotional capability to provide for the upkeep and education of the child and give parental care. This Court observed the Applicant with the child in Court and it was evident that in the period that the Applicant has had the custody of the child, the child has bonded well. The child considers the Applicant to be her parent.

Disposition1. On the basis of a careful examination of the documents presented before me as well as the observations made therein, this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicant. Hence, this Court allows the Applicant’s application.2. The Applicant, FKM is hereby allowed to adopt Baby VM a.k.a J. Henceforth, the child shall be known as EMK.3. The Child’s date of birth is 22nd July, 2017 and the place of birth shall be Nairobi County.4. The child is a Kenya Citizen by birth and entitled to all rights of a Kenyan citizen.5. AMM and MJ shall be the legal guardians of the child should such eventuality arise.6. This Court directs the Registrar General to duly enter this order in the Adoption Register.7. The guardian ad litem is hereby discharged.

It is so ordered.

DELIVERED DATED & SIGNED AT MACHAKOS THIS 14th DAY OF JUNE OF 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGECOURT: The Court ICT Platform not working. Matter deferred to 15/06/2022. M.W. MUIGAIJUDGE15/06/2022COURT: Ruling read over and explained to Parties/Counsel in Open Court Online.