[2023] KEHC 27289 (KLR)

In re BM & JM (Minors) (Adoption Cause E001 & E002 of 2022) [2023] KEHC 27289 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27289 (KLR)

Republic of Kenya

In the High Court at Kajiado

Adoption Cause E001 & E002 of 2022

SN Mutuku, J

December 13, 2023

In the matter of

GNM

1st Applicant

EAO

2nd Applicant

Judgment

1. By an Amended Originating Summonses dated 27th January 2023, in Cause No. XXXX of 2022 and 22nd February in Cause No. XXXX of 2022, the two applicants have approached this court seeing the following orders:i.That this Honourable Court be pleased to Appoint RMM of Post Office No. XXXX-00200 Nairobi as the Guardian Ad Litem for BM and JM, the minors in both Adoption Causes, during the hearing of this Adoption Cause.ii.That the Director of Children Services do investigate the suitability or otherwise of the Applicants to adopt the minors, BM, and JM respectively and file/summit a report to this Court.iii.That the Applicants, GNM and EAO, be authorized to adopt the minor, BM, and JM and that the said minors be known as BMN and JMN, respectively upon making of an adoption order by this Honourable Court.iv.That VKM be appointed Legal Guardian of the minors in the event the Applicants jointly die or become permanently incapacitated before the minor attains the age of majority.v.That the consent of the guardian parents of the minor be dispensed with.vi.That the Registrar General be directed to make the appropriate entries into the Adoption Children’s Register in respect of the minors, BM and JM.vii.That this Honourable Court do issue such other orders as it may deem necessary in the best interest of the minor herein.viii.That costs of the Adoption Cause be in the cause.

2. The Summons is supported by the Affidavit of both Applicants dated 27th January 2023. They have deposed that they are residents of Kenya and Kenyan citizens by birth and have lived with the minors for 1½ years before filing this Cause; that they live in a two bedroomed house at Maasai Lodge in Ongata Rongai, in Kajiado County; that they have been authorized to adopt the minors and that the 1st Applicant was born in 1983 while the 2nd Applicant was born on 12th December 1991. Both are married, as evidenced by the marriage certificate attached to these Summons. Both profess Christian faith and have two other biological children, SMN, born 7th July 2011 and. BMN born on 10th September 2013.

3. The 1st Applicant is a Petrographic Technician while the 2nd Applicant operates a business in Ongata Rongai. They have deposed that they have sufficient family income and assets to enable them to take care and cater for the minors and sustain the family; that they are of good health and have no criminal records as evidenced by the Police Clearance Certificates attached to these Summons and that they have been approved by Little Angels Network through their Case Committee to adopt the minors who has been declared free for adoption by Little Angels Network Adoption Agency.

4. They have stated that they are related to the minors by virtue of being maternal uncle and aunt respectively; that the minors were born of MMM who died on 1st July 2020 as evidenced in the death certificate attached to the Summons and that the minor’s biological father is not known. They state that they are motived by having a big family themselves having been brought up in big families and that they have the means to provide the minor with access to good education and medical care. They wish to rename the minors as BMN and JNM respectively. They have proposed VKM to be appointed as Legal Guardian.

5. On 11th May 2022, this court appointed Richard Marvin Mbuthia as Guardian Ad Litem and directed him, as well as the Director of Children Services, to file reports on the suitability of the Applicants to adopt the minors. These reports have been filed. That of the Guardian Ad Litem was filed on 21st September 2022. The report shows that the BM and JM were born of MMM, now deceased. The report shows that the Applicants took the minors into their home after the death of their mother; that BM attends Bright Star Academy; that JM was yet to start formal education at the time the report was prepared. Both minors are healthy and active; that the minors have bonded well with both Applicants who are financially stable and capable of providing for the minors and that Applicants are well grounded in their parental responsibility. The report recommends that the Applicants be allowed to adopt the minors.

6. The Report from the Kajiado County Coordinator for Children Services is prepared by Samwel M. Masese. It is dated 15th September 2022. It covers both minor and recommends that the Applicants be allowed to adopt the two minors.

7. I have considered this matter. This is a kinship adoption. The two minors are children of MMM, a single parent as at the time of her death. The biological father of the two minors is not known and therefore his consent could not be obtained. The late mother of the minors was sister to the 1st Applicant. Kinship adoptions are covered under Section 193 of the Children Act which provides that:193. (1)A kinship adoption order may only be made in favour of a relative of the child.

8. I have considered the provisions of the Children Act covering adoptions. I am satisfied that the Applicants have complied with the law and that these proceedings comply with section 185, 186 and 187 of the Children Act. I have considered the reports from the Children Services and the Guardian Ad litem. Both reports are positive and recommend that the Applicants be allowed to adopt the two minors.

9. I have read the court file records and confirmed that the Applicants are suitable to adopt the two minors. They have provided for them and taken care of all their needs. They are financially stable to provide for the two minors and their two children. They were approved by Little Angels Network Adoption Society and the two minors have been declared free for adoption through Certificates Serial No. 00XXXX dated 1st December 2021 and Certificate Serial No. 00XXXX of the same date respectively.

10. The two minors have bonded well with the Applicants and family and given that the Applicants are their maternal uncle and aunt and given that their mother is deceased, and father is unknown, it is my considered view that it is in the best interest of both minors that an adoption order should issue.

11. I have also noted that the proposed Legal Guardian has consented to be so appointed. I allow the Originating Summons herein and grant an adoption order in respect of the two minors in the following terms:i.That the Applicants, GNM and EAO, be and are hereby authorized to adopt the minors, BM and JM, and that the said minors be known as BMN and JMN, respectively.ii.That VKM be and is hereby appointed Legal Guardian of the minors BMN and JMN in the event the Applicants jointly die or become permanently incapacitated before the minor attains the age of majority.iii.That the consent of the minors’ biological father be and is hereby dispensed with.iv.That the Registrar General be and is hereby directed to make the appropriate entries into the Adoption Children’s Register in respect of the minors, BMN and JMN.v.Richard Marvin Mbuthia is hereby discharged from the duties and responsibilities of Guardian Ad Litem.vi.Costs of this Adoption Cause shall be in the cause.

12. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 13TH DECEMBER 2023. S. N. MUTUKUJUDGE