[2022] KEHC 16823 (KLR)

In re Baby ZB (Adoption Cause E057 of 2021) [2022] KEHC 16823 (KLR) (Family) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16823 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E057 of 2021

EKO Ogola, J

December 13, 2022

In the matter of

BWK

Applicant

Judgment

1. Before this court is the Originating Summons dated June 4, 2021 by which the applicant BWK seeks the following orders: -1. That the Applicant herein namely BWK be authorized to adopt the child2. That the child be named KWK3. That the consent of the biological parents be dispensed with since the child was found abandoned4. That the date of birth of the child be October 3, 20195. That TTW and GWK be appointed the legal guardians of the child in case of incapacity of the Applicant before the child attains the age of majority6. That the registrar general be directed to enter the Adoption Order in the Adoption Register7. That the child be presumed to be a Kenyan Citizen8. That the director of immigration be authorized to issue the child with Kenyan citizenship9. That the court be pleased to make any further orders it deems necessary.

2. The Summons was supported by the statement of even date sworn by the applicant and an Affidavit in support. Further Affidavit dated May 25, 2021 by the Guardian ad Litem. The matter was canvassed by way of viva voce evidence on the online platform.

3. PW1 Applicant herein stated that she is a single lady aged 44 years old. She does not have any children and has always desired to have a child. She stated she had gotten the baby from the adoption home on November 27, 2020 and has stayed with her for one (1) year eleven (11) months. She indicated she is financially stable enough to take care of a child.

4. PW2 TTW the brother in law to the Applicant stated that he understands the role of a legal guardian to take care of the child in the event the applicant is not able to do so. He has given his consent to appointed legal guardian.

5. PW3 GWK a sister to the Applicant. She understands the role of a legal guardian to take care of the baby when the applicant is unable to do so. She has given her consent to be appointed a legal guardian.

6. PW4 WINFRED IKINYA, an Assistant Director in Children Services stated that after assessment of the Applicant, the Director of Children Services recommended the adoption.

7. PW 5 JOSHUA WAMBUA from little Angels Network testified that the child was declared free for adoption by Buckner Kenya Adoption Services on November 13, 2020. That the Applicant approached Little angels with intent to adopt and after relevant interviews and home visits were done, the child was placed in the Applicant’s care on November 27, 2020. The Applicant bonded very well with the baby. The Adoption Agency recommends the adoption.

8. PW6 DR. ANGELO NYOKABI KANYAGIA a Guardian ad litem appointed by court on November 4, 2021 testified that he conducted investigations as directed by the court and recommends the adoption by the Applicant. He produced his report dated December 5, 2021.

Determination 9. I have carefully considered this application for adoption the various Affidavits and Reports on record as well as the relevant law. I have also considered the evidence adduced in open court. The preliminary requirements for the making of an Adoption Order are set out in Section 156(1) of the Children’s Act 2001 which provides as follows: -“159 (1) No arrangement shall be commenced for the adoption of a child unless the child is at least six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.”

10. The subject child was born on October 3, 2019 as evidenced by the age assessment form at page 3 of the documents attached to the Applicant’s Statement. The child is now about three (3) years old well above the six (6) week age limit provided for in law. Annexed at page 6 is the copy of the Certificate Serial Number 416 issued by the Buckner Kenya Adoption Services declaring the child free for Adoption. I am therefore satisfied that all the legal pre-requisites for an adoption order have been met.

11. The duty of this court is to analyze the material placed before it and make a determination as to whether the Applicant is a suitable adoptive parent. The Applicant is a Kenyan citizen. Annexed at page 9 is copy of her national identity card.

12. The Applicant is engaged in gainful employment working as contractor/Administrator in a Company in Kenya where she earns a net salary of over Kshs 300,000/- per month. In addition, she owns different properties and has savings. The report by the Guardian ad Litem states that the Applicant as at December 10, 2020 had savings of Kshs 600,000/-. From pages 16 -22 of the statement the Applicant has provided bank statements, titles to the pieces of land she owns and logbook of her motor vehicle. This shows that she is financially stable to provide for the child.

13. The Applicant was examined and found to be physically and mentally fit. She has provided a medical report annexed at page 27. The Applicant has also annexed at page 26 a copy of her Certificate of Good Conduct issued by the Kenya Police Service which prove she has no criminal antecedents.

14. The Applicant has appointed her sister GWK and her spouse TTW as Legal Guardians of the child. They have both signed a consent dated November 6, 2018. The letter of consent, the guardians’ copies of Identity cards are annexed from pages 23 to 25 of the Statement.

15. Based on the foregoing I am satisfied that the applicant is a suitable adoptive parent.

16. As stated earlier the child who was born on October 3, 2019 as per the age assessment form. The child was found abandoned close to a dumpsite in Ngando Area near Southern bypass, Nairobi Area on October 4, 2019. She was rescued by a good Samaritan. The matter was reported at Riruta Police Station vide OB Number 34/04/10/2019. The child was placed at New Life Home Trust in Kilimani on October 4, 2019. Thereafter Nairobi Children’s Court committed the child to New Life Home Trust on January 15, 2020 as per the committal form at page 4 of the Statement. On November 27, 2020 the child was released into the custody of the Applicant under a Foster Care Agreement.

17. Following the abandonment of the child, efforts by the police to trace the biological parents and relatives of the child have borne no fruit. Similarly, no person has come forward to claim the child. The final police letter dated June 10, 2020 is at page 5 of the Statement.

18. Given that this child was abandoned by her biological mother there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances I dispense with the requirement for consent in line with Section 159(1)(e) of the Children’s Act.

19. Article 14 of the Constitution of Kenya 2010 deals with issue of Citizenship. Article 14(4) provides as follows:“4A child found in Kenya who is, or appears to be less than eight years of age and whose nationality and parents are not known, is presumed to be a citizen by birth.”The subject child was abandoned at birth in Ngando along Southern bypass which is in Nairobi County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth and I so declare.

21. In deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 44(2) of the Children Act 2001 provides: -“2In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”.

22. The child has lived with the Applicant in their family home since she was about One (1) year one (1) month old up to the present date. There is no doubt that the child has bonded with the Applicant and considers her as her mother.

23. A home visit revealed that the Applicant lives in a two-bedroomed house in Valley Arcade. The place is well guarded with guards during the day and night and an appropriate place to bring up a child.

24. The various reports filed in court all recommend the adoption. I am satisfied that the adoption will serve the best interests of the subject child. Accordingly, I allow this application and make the following orders: -1. The Applicant BWK is authorized to adopt the child known as BZB.2. Upon adoption the child will be known as KWK3. The child is declared Kenyan Citizen by birth and is entitled to all the rights and liberties due to a citizen of Kenya.4. The Registrar General is directed to make appropriate entries in the Adopted Children’s Register5. TTW and GWK are appointed as Legal Guardian of the child.

It is so ordered.Dated, Signed and Delivered at Nairobi this 13thday of December 2022. E K OGOLAJUDGEJudgment delivered online in the presence of:M/S Omano for the ApplicantMs Gisiele Court Assistant