[2016] KEHC 263 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 298 OF 2014

IN THE MATTER OF THE CHILDREN ACT, 2001

AND

IN THE MATTER OF BJ

CNM.........................APPLICANT

JUDGMENT

CNM (“the Applicant”) is a sole female applicant. The Applicant is a business lady. She is divorced and has no biological children of her own. She wishes to adopt a child.

The Applicant seeks by her application to be allowed by this Court to adopt Baby J (hereafter “the child”). The child who is the subject of the present adoption proceedings was found abandoned in Eastleigh Estate within Nairobi County on 7th October 2011. He was presumed to have been born on the same day. A report on the matter of the abandoned child was made at Pangani Police Station and the same was recorded vide OB No. [Particulars Withheld] The child was referred to Nairobi Children’s Home where he was admitted on the same day. He remained at the home until he was transferred to Hope House Babies Home on 15th October 2011 for care and protection and this is evidenced by the child’s admission form into Hope House Babies Home.

The Senior Resident Magistrate Children's Court sitting at Nairobi, in accordance with Section 119of theChildren Act, committed the child to Hope House Babies Home on 26th November 2012 vide P&C No 566/2012. The child was placed in the custody of the Applicant on 4th February 2013 for mandatory bonding prior to adoption. The child has since then been in the continuous custody and care of the Applicant. According to correspondence from relevant police authorities at Pangani Police Station, no one has come forward to claim the child. A report to that effect has been filed in Court. Thus, this Court dispenses with the consent of the child’s biological parents to the proposed adoption of the child by the Applicant. The adoption society, Child Welfare Society of Kenya issued a certificate declaring the child free for adoption pursuant to Section 156(1)of theChildren Act. The said freeing certificate is no. [Particulars Withheld] and the same is dated 15th July 2014.

In an application filed on 27th January 2015, the Applicant sought among others, orders from this Court that ENN be appointed as the child’s guardian ad litem, and that the Director of Children’s Services be ordered to investigate her suitability to adopt the child and submit a report. She further sought for an order that upon adoption the child be known as JM. The Applicant also sought to have the Court appoint XXX as the child’s legal guardian. On 13th February 2015, this Court issued an order appointing ENN as the child’s guardian ad litem, and further directing the guardian ad litem and the Director of Children’s Services to file their respective reports in Court.

Pursuant to Section 156(1)of theChildren Act, before this matter came up for hearing, Child Welfare Society of Kenya the relevant adoption society, prepared and filed in Court a favourable 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 favour of the proposed adoption. The guardian ad litem, ENN, also filed the statutory report made under Section 160(2)of theChildren Act in which she noted that the proposed adoption of the child by the Applicant is in the best interest of the child.

This is a local adoption. The Applicant, a single female applicant wishes to adopt a male child. UnderSection 158(2) of the Children Act, an adoption order shall not be issued in favour of a sole female applicant in respect of a male child unless the court is satisfied that there are special circumstances that justify the making of such adoption order. The Adoption Committee established under Section 155(1) of the Children Act issued guidelines on 13th January 2010 in regard to circumstances that the court will take into account in determining whether the sets of facts put forward by the Applicant fulfills the criteria of special circumstances. In the case of a sole female applicant adopting a male child, the following are circumstances which may be considered as special:

1. When the child is a relative.

2. When the child has special needs and the applicant is willing and has capacity to take care of the child.

3. Where the applicant has adopted or has another biological child or children over whom she is willingly exercising parental responsibility.

4. Where the child to be adopted has a sibling who is also being adopted by the applicant.

5. Proposed applicant is the only person available to adopt the child.

6. Where the applicant is the legal guardian of the child or children appointed by will or in adoption proceedings and the parents die or become permanently incapacitated.

In the present case, the reports filed by the adoption agency Child Welfare Society of Kenya and the Director of Children’s Services indicate that the Applicant made an application to adopt the child subject of these proceeding and another, a girl Baby C. Both applications were approved by the adoption agency, Child Welfare Society of Kenya. The Applicant filed in this court an application for adoption in respect of Baby C vide Adoption Cause No. 299 of 2014. The court being satisfied that the Applicant has the financial and emotional capability to provide for the maintenance of the child issued the adoption order to the Applicant. From the foregoing, the instant application by the Applicant falls under the special circumstance that she another adopted child. It is evident that the Applicant has fulfilled all the legal requirements relative to the adoption of the child. The consent of the biological parents of the child was dispensed with since the child was abandoned at birth, and his biological parents could not be traced to give their consent. This Court has satisfied itself that the Applicant is qualified and able to take care of the child. The home visits by the guardian ad litem, the Adoption Society and the Director of the Children’s Services established that the Applicant has the financial and emotional capability to provide for the upkeep and education of the child. 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 with her. The child considers the Applicant to be his mother.

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. The Applicant, CNM, is hereby allowed to adopt Baby J. Henceforth, the child shall be known as J M. His date of birth is 7th October 2011. His place of birth shall be Nairobi County. He is presumed to a citizen of Kenya by birth. XXX shall be the legal guardian of the child should such eventuality arise. This Court directs the Registrar General to duly enter this order in the Adoption Register. The guardian ad litem is hereby discharged. It is so ordered.

DATED AT NAIROBI THIS 10TH DAY OF NOVEMBER 2016

M. W. MUIGAI

JUDGE

In presence of:-