In re B (Baby) [2021] KEHC 6467 (KLR)
- Citation
- [2021] KEHC 6467 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Posture
- Adoption Cause / Judgment
- Case number
- Adoption Cause 12 of 2020
- Language
- English
More details
- Court
- High Court
- Posture
- Adoption Cause / Judgment
- Case number
- Adoption Cause 12 of 2020
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the Applicants had satisfied all statutory requirements for adoption under the Children.s Act, 2011. The child was abandoned and the biological parents could not be traced, justifying the waiver of parental consent. Reports from the Kenya Children.s Home Adoption Society and the guardian ad litem confirmed that the Applicants are suitable adoptive parents, financially and emotionally capable of providing for the child, and that the child had bonded well with them. The court determined that the adoption was in the best interests of the child, who would benefit from a stable and loving family environment. Accordingly, the court granted the adoption order, appointed legal guardians in the event of the Applicants. incapacity or death, and directed the necessary administrative steps to formalize the adoption.
Court disposition
adoption granted
Orders
- The Applicants Martin Maina Mwangi and Mary Wangeci Macharia are allowed to adopt Baby B, who shall henceforth be known as JMM.
- The child.s date of birth is presumed to be 20th April, 2018, and place of birth Nairobi.
- CWM and BMM are appointed legal guardians in the event of the Applicants. death or incapacity.
- The Registrar General is directed to enter this Order in the Adopted Children.s Register.
- The Director of Immigration is authorised to issue the child with a Kenyan Passport.
- The guardian ad litem is discharged.
02
Material facts
Parties
MMM
ApplicantMWM
Applicant03
Procedural history
Posture
Adoption Cause / Judgment
04
Questions and positions
Legal issues
- 01
Whether the Applicants have met the statutory requirements for adoption under the Children.s Act.
- 02
Whether the consent of the biological parents can be dispensed with due to abandonment.
- 03
Whether the adoption is in the best interests of the child.
Party arguments
- Applicant
- The Applicants argued that they have fulfilled all statutory requirements for adoption, are financially and emotionally capable of caring for the child, and that the child has bonded with them. They relied on positive reports from the adoption society and guardian ad litem, and submitted that the biological parents could not be traced, making consent unnecessary.
- Respondent
- There was no formal respondent; however, the reports from the Kenya Children.s Home Adoption Society and the guardian ad litem supported the adoption, confirming the Applicants. suitability and the child.s best interests.
05
Court’s reasoning
Legal principles
- 01
Section 4(2) of the Children.s Act, 2011
The best interests of the child are paramount in adoption proceedings.
- 02
Section 159(1)(a) and (4) of the Children.s Act, 2011
Consent of biological parents may be dispensed with if the child is abandoned and parents cannot be traced.
- 03
Children.s Act, 2011; Article 53(2) of the Constitution of Kenya
Adoption orders may be granted where statutory requirements are met and the adoption is in the child.s best interests.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the Applicants had satisfied all statutory requirements for adoption under the Children.s Act, 2011. The child was abandoned and the biological parents could not be traced, justifying the waiver of parental consent. Reports from the Kenya Children.s Home Adoption Society and the guardian ad litem confirmed that the Applicants are suitable adoptive parents, financially and emotionally capable of providing for the child, and that the child had bonded well with them. The court determined that the adoption was in the best interests of the child, who would benefit from a stable and loving family environment. Accordingly, the court granted the adoption order, appointed legal guardians in the event of the Applicants. incapacity or death, and directed the necessary administrative steps to formalize the adoption.
Obiter and limits
- The child stands to gain from the opportunities provided by becoming the son of the Applicants and will grow up in a stable home.
- The Applicants have fulfilled all the legal requirements relating to the adoption of the child.
Court disposition
adoption granted
- The Applicants Martin Maina Mwangi and Mary Wangeci Macharia are allowed to adopt Baby B, who shall henceforth be known as JMM.
- The child.s date of birth is presumed to be 20th April, 2018, and place of birth Nairobi.
- CWM and BMM are appointed legal guardians in the event of the Applicants. death or incapacity.
- The Registrar General is directed to enter this Order in the Adopted Children.s Register.
- The Director of Immigration is authorised to issue the child with a Kenyan Passport.
- The guardian ad litem is discharged.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ADOPTION CAUSE NO. 12 OF 2020 (O.S)
IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2011
IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF A BABY B
BY
MMM AND MWM (APPLICANTS)
JUDGMENT
1. The Applicants MMM and MWM are in a monogamous marriage which was solemnized at Nairobi Pentecostal Church on 8th September, 2007 as evinced in the Certificate of Marriage Serial No. [...]. They have two children aged 11 and 14 years respectively. They wish to adopt a male child known as Baby B through the originating summons dated 17th January, 2020.
2. The pleadings indicate that the 1st Applicant MMM is a Hotelier at [particulars withheld] and MWM, the 2nd Applicant is a Relationship Manager at [particulars withheld]. They reside at Golf Course Estate Phase I within Nairobi County and both profess the Christian faith.
3. The records before the court indicate that the minor in this matter was found abandoned at Sunton in Kasarani on 20th August, 2018. The matter was reported to Kasarani Police Station where it was booked as OB No. [...]. From the police station the child was handed over to Happy Life Children’s Home for care and protection pending a committal order.
4. On 3rd October, 2018 the Senior Resident Magistrate sitting in Nairobi committed the child vide P & C [...] to Happy Life Children’s Home. On 1st March, 2019 Kasarani Police issued a final letter in which they confirmed that the biological parents of the child were not traced, nor did anyone come forward to claim the child. On 26th July, 2019 the Applicants took the child into foster care with a view of adopting. A foster agreement was signed on the same day.
5. Prior to the hearing of the adoption application, Kenya Children’s Home Adoption Society prepared and filed a report dated 17th April, 2019. They also issued a Certificate dated 17th April, 2019 declaring the child free for adoption. The guardian ad litem JN filed a report dated 2nd September, 2020 which was favourable and recommended the adoption of the child by the Applicants.
6. An officer from the office of the Kenya Children’s Homes conducted home visits and established that the applicants are financially and emotionally capable of providing for the upkeep and education of the child. She filed a report dated 5th February, 2020 recommending the adoption for reasons that the child stands to gain from the opportunities provided by becoming the son of the Applicants. He will also grow up in a stable home. The Applicants were found to have fulfilled the statutory requirements for Adoption.
7. This is a local adoption and from the report of Kenya Children’s Homes the Applicants have fulfilled all the legal requirements relating to the adoption of the child. The consent of the biological parents was dispensed with since the child was abandoned at infancy and the parents could not be traced to give their consent. From the reports by Kenya Children’s Homes and the guardian ad litem, the child had been under the custody and care of the applicant. The child was present virtually in court during the hearing and appeared to have bonded well with the Applicants.
8. From the foregoing, this court is of the considered view that it is in the best interest of the child to be adopted by the Applicants. Reasons wherefore, I allow the prayers sought in the Originating Summons dated 17th January, 2020 and Order as follows:
i.The Applicants Martin Maina Mwangi and Mary Wangeci Macharia be and are hereby allowed to adopt Baby B who shall henceforth be known as JMM.
ii. His date of birth shall be presumed to be on 20th April, 2018. He is presumed to have been born in Kenya in accordance with Article 14(4) of the Constitution, and the place of birth shall be Nairobi.
iii. CWM and BMM are hereby appointed the legal guardians in the event that the Applicants die, or are incapacitated by ill health.
iv. The Registrar General is directed to enter this Order in the Adopted Children’s Register.
v. The Director of Immigration is hereby authorised to issue the child with a Kenyan Passport.
vi. The guardian ad litem is hereby discharged.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 27TH DAY OF MAY, 2021.
.........................
L. A. ACHODE
HIGH COURT JUDGE
In the presence of...................Advocate for the Applicants
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