[2022] KEHC 17219 (KLR)

In re BAMN (Minor) (Adoption Cause E057 of 2022) [2022] KEHC 17219 (KLR) (Family) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17219 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E057 of 2022

EKO Ogola, J

December 15, 2022

Judgment

1. Before this Court is the Originating Summons dated April 27, 2022 where the Applicant seeks the following orders: -a)Spent;b)Spent;c)That the applicant be authorized to adopt the child, BAMN to be known as BMNP;d)That the child be presumed a Kenyan Citizen by birth;e)That the child’s date of birth be 30th December 2004 and the place of birth be Karen, Nairobi;f)That the Registrar General be directed to enter the adoption in the Adopted Children’s Register;g)That the Director of Immigration be authorized to issue the child with a Kenyan passport;h)That RPAO be appointed the legal guardian of the child in event of the death or incapacity of the Applicant before the child is of age or independent or self-reliant;i)That the court be pleased to make any further orders it deems necessary.

2. The Originating Summons was supported by the Applicant’s Affidavit and Statement. It was further canvassed by way of viva voce evidence in open court.

3. PW1 was RPAO the guardian ad litem. She testified that she filed a report dated September 6, 2022 where she recommended the Applicant CJNP to adopt the child.

4. PW2 was Caroline Olilo a Children’s Officer. She assessed the Applicant and filed her report dated August 16, 2022. She has no reservations about the Applicant adopting the child.

5. PW3 was JMW. She works for Little Angels Network an Adoption Agency. She testified that the Applicant approached the agency on December 14, 2021 seeking to adopt the child. The Agency investigated her in her two residences, Kenya and the United States of America. The child as declared free for adoption on February 2, 2022 under Certificate No 002235. The Agency recommended the Applicant without any reservation.

6. The Applicant took the stand as PW4. She testified that the child is her niece. What motivates the adoption is the need to offer the child a good future by giving her an opportunity to live and study in USA and to also inherit her property upon death.

Determination 7. I have carefully considered this Application for Kinship Adoption, the affidavits and the reports on record.

8. This application is one for kinship adoption because the Applicant is related to the child. (see Section 2 of the Children’s Act). One of the Applicant’s desires is for the child to join her in the USA where the Applicant can sufficiently provide for the child. This does not contravene the moratorium issued by the Cabinet Secretary on November 27, 2014 which involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenyan Applicants, even those living abroad.

9. A kinship adoption is a domestic adoption. In Adoption Cause XX/2017, JNA by Zoo and CAN the Court held that:-“According to the guidelines for alternative Family Care of Children in Kenya pg.153, kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child. Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoption. This is therefore considered to be a local adoption.”

10. Further to this, the requirements for kinship adoption are well set out in Part XIV of the Children’s Act. From the Court’s record, the applicant has fulfilled the stipulated conditions. The conditions are as follows:-a)The Applicant is above twenty-five years of age and below sixty-five years of age;b)The Applicant is a relative of the child;c)The child has been declared free for adoption;d)That all the reports and evaluations conducted indicate that it is in the best interests of the child that the applicant adopts the child as demonstrated by the fact that they are family, and that the applicant has been educating and providing for the child since birth;e)That the child has given her consent to being adopted by the applicant.

11. From PW3’s report, the child, BAMN was born in Karen, Nairobi County on December 30, 2004 to one BAN. The father’s name is not included in the birth certificate. BAN had four children and BAMN is the third born. BAN passed away on December 15, 2018. The Applicant informed PW3 that she had been supporting BAN and her children including BAMN before and after the death of her sister BAN.

12. The child’s maternal aunt and uncle, and the child’s elder siblings gave their consent to the adoption. There is also a signed consent by the child, BMAN agreeing to be adopted by the Applicant. From the reports, it is noted that the Applicant was widowed in the year 2020.

13. Further to the aforementioned conditions, the Applicant is engaged in gainful employment as the owner of a consulting accounting firm. She is also in good health and has the potential to provide a good social life and religion to the child.

14. The Applicant has also annexed her Certificate of Good Conduct issued by the Kenya Police Service, proving that she has no criminal antecedents in Kenya.

15. It is however important to note that as per the international home study report conducted in the USA, the Applicant was arrested on June 28, 2019 and charged with the offence of ‘theft by taking’. This arrest was done when the Applicant went to the Police Station to obtain a criminal background check to initiate these adoption proceedings. Unbeknownst to her, a former client had taken out warrants of arrest against her nine years ago. It was later established that this client was a disgruntled client who did not fully understand his financial situation. The Applicant was arraigned in Court and the case was later dismissed for lack of evidence.

16. Section 186 (6)(c) of the Children’s Act provides that the Court shall not make an adoption order in favour of an Applicant who has been convicted by a Court of competent jurisdiction for any of the offences specified in the Third Schedule or similar offences. The Applicant was not convicted of the offence ‘theft by taking’ an offence that under Section 283 of the Penal Code, CAP 63 Laws of Kenya could be equated to ‘stealing by agent’. This is still an offence that is neither listed under the Third Schedule of the Children’s Act nor is it a similar offence to those listed. I have no reason to disqualify the Applicant from Adopting the child.

17. The upshot is that I allow the Originating Summons dated April 27, 2022 in the following terms:-a. The applicant CJNP is hereby authorized to adopt the child BAMN.b. Upon adoption, the child shall be known as BMNP.c. RPAO is hereby appointed as legal guardians of the child BAMN in the event the Applicant is incapacitated or in any way unable to discharge her parental obligation.d. The Registrar General is hereby directed to make the appropriate entries in the Adopted Children’s Register.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER 2022E K OGOLAJUDGEIn the presence of:Mr Onsongo h/b for Kiguatha for the ApplicantGisiele Muthoni Court Assistant.