[2022] KEHC 12866 (KLR)

In re BM (Minor) (Adoption Cause E006 of 2021) [2022] KEHC 12866 (KLR) (9 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12866 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause E006 of 2021

TM Matheka, J

September 9, 2022

In the matter of

PMM

1st Applicant

CWM

2nd Applicant

Judgment

1. PMM and CWM are the applicants in the Originating Summons dated May 4, 2021 brought under articles 14(4), 53(2) of the Constitution of Kenya (2010) sections 4, 154, 156(1), 157, 158, 159, 162, 163, 170 of the repealed Children Act No. 8 of 2001 and L.N.75 of 2002. The couple, husband and wife respectively are seeking the authority of this court to adopt the minor CA alia BM a.k.a. CNM.

2. In their joint supporting affidavit sworn on the same date they have demonstrated their suitability for this noble task in which they want the child named herein to become their child.

3. They have annexed their marriage certificate, their certificate of good conduct, recommendation from family, friends and church, their affidavit of means, their health certificates.

4. They have also demonstrated that they have had the care and custody of the child since July 1, 2015, when the child was five (5) months old.

5. The story of the child is set out in the documents filed by Little Angels Network, the adoption agency through which the applicants got placed with the child. Among the documents is an extract of an OB report at Kaptembwa Police Station dated June 21, 2015 addresssed to the AGC Baby Centre, Ref. ON XXXX/15, BM, age 5 months. The OCS states that the child was rescued from one Beatrice Esala, who, it was found was not the biological mother of the child and was suspected to have stolen the child from Kisii at an unknown place.

6. By a letter dated August 16, 2016 the OCS Kaptembwa Police Station informed the AGC Baby Centre they have conducted investigations and in vain to trace the parents of the child. That also, no one else had come forward to claim the baby by this letter, the OCS was declaring the child free for adoption.

7. On March 21, 2017 the matter appears to have been taken over by the Kenya Children’s Home Adoption Society. They received the applicants application for placement and their sitting of May 17, 2019 approved the application and placements.

8. The child had been committed to AGC Baby Centre vide P & C No. XXX of 2015 Children’s Court Nakuru. The child was declared free for Adoption vide the Little Angels Network report dated 5th May 2015 and the requisite certificate issued accordingly.

9. Finally the Department of Children Services filed their report ref. CCC/NKR/1/23/Vol.x18 dated July 26, 2021. The defendant found the couple to be suitable adoptive parents.

10. The guardian ad litem also filed his report.

11. During the oral hearing, I heard both applicants together with the legal guardian Francis Njoroge Munyua, brother to the 1st applicant.

12. Having heard all the evidence, considered all the documents, and all the reports as set out herein above, the only issue for determination is whether the applicants deserve the orders they seek. It is evidence they will all criteria set out in the law, age, financial, physical, emotional and societal stability. They have no criminal records, but most important they are ready, willing and able to take this child and be the child’s parents. They have done so since 2015 and they want bond they have to be legalized. What about the child? The court must ask itself whether the orders sought are in the best interest of the child.

13. The circumstances of the child as described in the reports, from the police the DCs, the adoption agency. She definitely needs a family and it is in her best interests to be with the couple who have taken care of her for the last seven (7) years.

14. The legal guardian is her uncle. He appears to understand his duty should the adoptive parents be absent or unable to parent. Hence it is my considered view that the two (2) applicants deserve the orders sought.

15. Before I conclude, I must emphasize a point I have made elsewhere, that the police are the children who end up at their station, like the child herein, a proper investigation. It is not sufficient for the police to say, that the child was rescued from a suspected child thief then leave it there. This child thief ought to have been properly investigated and charged. No such information is available. That there was indeed an actual investigations, that anyone recorded any statements or what they did with the suspected thief. What made the police believe that the child had been stolen from Kisii? What if there is a mother out there, a family, grieving the loss of their child, yet the child is here?

16. All I am saying is that without proper investigations, the police could become a weak link in tracing parents of children who get lost, yet they are the ones with the investigative machinery.

17. In this case, there is that loose end that the police did not properly tie up.

18. Be that as it may, I do not find that the applicants are suitable adoptive parents and make the following orders;

1)That they are hereby authorized to adoption baby CA alias BM, to be known as CNM.2)That the Registrar General do make the appropriate entries in the Adopted Children’s Register, and the Registrar of Births, Deaths to issue the appropriate Certificate of Birth.3)Munyua Francis Njoroge is appointed Legal Guardian for the child.4)The guardian ad litem is hereby discharged.5)No orders as to costs.6)Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF SEPTEMBER, 2022. Mumbua T. MathekaJudgeIn the presence of:Court Assistant: JenniferMrs Gatheca present