[2023] KEHC 25755 (KLR)

In re Baby ZP aka MZWK (Adoption Cause E112 of 2023) [2023] KEHC 25755 (KLR) (Family) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25755 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E112 of 2023

PM Nyaundi, J

November 3, 2023

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001 IN THE MATTER OF ADOPTION OF ABANDONED BABY ZP AKA MZWK AND IN THE MATTER OF AN APPLICATION FOR ADOPTION

In the matter of

JKK

1st Applicant

AWN

2nd Applicant

Judgment

1. The Applicants, JKK and AWN vide Originating Summons dated 16th June 2023 have made an application for the adoption of baby ZP aka MZWK the child herein. The applicants have been married since 2012 and have attached a copy of marriage certificate serial number xxxx. They wish to adopt the child with the desire to grow their family. They had earlier adopted a daughter ANK and have attached a copy of the certificate of entry in the adopted children register Entry No.xxxx.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 19th of September 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 1st applicant is a businessman, the second applicant works as program officer at [Particulars withheld]. They have had custody of the child since 8th December 2022. They reside in Kitengela. They fully understand the consequences of an adoption order.

4. The child is presumably born on 18th December 2021 at Huruma in Nairobi County. She was found abandoned on 20th December 2021 at [Particulars Withheld] by a Good Samaritan one Joseph Kariuki a boda boda rider of mobile number xxxx and reported the matter at Huruma Police Station and the child was estimated to be 2 days old. The matter was reported and recorded as OB No xxxx and the child was referred to Christ Chapel Children’s Home where she was admitted as a child in need of care and protection and ZP.

5. The Sub-County Children’s Officer- Starehe was involved and the minor was committed to Christ Chapel Children’s Home as in need of care and protection in Children’s Court at Nairobi on 5th August 2022 vide care and protection case number xxxx.

6. Prior to the hearing of the adoption application, Kenya Children’s Homes issued a certificate serial No. xxxx declaring the child free for adoption. On 12th September 2023 the Court appointed a Guardian Ad litem MKK.

7. The Guardian Ad Litem, MKK was present in Court and presented her report dated 12th September 2023. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She has also bonded well with the sister. She recommends that the Applicants be allowed to adopt the Baby.

8. Department of Children Services, Ruth Boke Gikaro prepared a report dated 13th October 2023, and counter signed by Nancy Waswa. The report established that the child was found abandoned at [Particulars Withheld] by a Good Samaritan called Joseph Kariuki (xxxx). She is presumed to be born on 18th December 2021. The matter was reported at Huruma Police Station via OB No.xxxx and Baby ZP was referred to Christ Chapel Children’s Home as a child in need of care and protection. She was estimated to be about two days old.

9. The Report further documents that at the time she was being placed with her prospective adoptive parents, (a year old), she was a bit malnourished, had rashes and her legs were bowed. Now she is very healthy, chubby and loves Mr & Mrs JKK very much and refers to them as Dad and Mom respectively. Baby ZP loves to feed herself and she is fond of their pet dog.

10. The proposed Legal Guardians HN and MN attended court and confirmed they are willing to take up the role of legal guardian. They are the 2nd Applicant’s brother and sister in law.

11. The Child was present in court, owing to her age it was not possible to interview her. The Court however observed that she appeared happy and attached to the Applicants. She recognised them as her mother and father.

12. 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.A sole applicant; orb.Two spouse 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.

13. The Applicants are aged 45 years and 46 years respectively.

14. 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

15. 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 madethe 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;

16. 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 16th June 2023 and order as follows:I.The Applicants JKK and AWN be allowed to adopt baby ZP aka MZWK.II.The Child to be known as MZWK.III.The Child be presumed to be a Kenyan citizen by birth and the date of birth is 18th December 2021 at Huruma, Nairobi County.IV.HN and MN are hereby appointed as legal guardians of Child.V.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VI.The Director Immigration is authorized to issue the child with a Kenyan passport.VII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 3RD DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Ms. Nyangiru for Applicant