[2007] KEHC 3419 (KLR)
The court held that the application for adoption must fail on a legal technicality because the person sought to be adopted, BAO, had attained the age of majority (over 18 years) by the time the matter was ready for determination. The Children Act defines a child as a person under 18 years, and the court has no...
Source-derived case information.
- Citation
- [2007] KEHC 3419 (KLR)
- Parties
- Applicant: JOO; Applicant: GFO; Respondent: BAO
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 141 of 2003
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Adoption Procedure, Definition of Child, Age Requirement for Adoption
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JOO
Applicant
GFO
Applicant
BAO
Respondent
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the court can grant an adoption order when the subject is above 18 years of age under the Children Act.
- 2 Whether the application is fatally defective due to the age of the person to be adopted.
Ratio Decidendi
The court held that the application for adoption must fail on a legal technicality because the person sought to be adopted, BAO, had attained the age of majority (over 18 years) by the time the matter was ready for determination. The Children Act defines a child as a person under 18 years, and the court has no jurisdiction to grant an adoption order for someone who is not a child as per the statutory definition. The delays in the matter, whether due to changes in advocates or the applicants' absence from Kenya, did not alter the legal position. As such, the application was dismissed without consideration of its merits.
Court Disposition
application dismissed
Orders
- The application for adoption is dismissed.
- No adoption order is granted as the subject is above 18 years of age.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Adoption Cause 141 of 2003
IN THE MATTER OF THE CHILDREN ACT NO. 8 OF 2001
IN THE MATTER OF BOO. (INFANT)
J U D G M E N T
Before me is an Originating Summons dated 5th May 2004 filed by Janet Odero & Company advocates. It seeks for the following orders, that –
1. AMO of P.O. Box Number[particulars withheld]Nairobi be appointed to act as quardian ad litem.
2. The consent of the natural parents be dispensed with based on the affidavit of JOO.
3. The applicants JOO and GFO be authorized to adopt the infant BAO.
The Originating Summons was supported by the affidavit of JOO sworn on 16th February 2004 seeking for dispensation with the biological parental consent for the proposed adoption. It is also supported by the affidavit of both applicants JOO and GFO sworn on 16th February 2004.
This application will not succeed.
I do not see the point of going into the merits of this application, because it fails on a legal technicality. This is an application for the adoption of a “child”, and it is brought under the provisions of the Children Act No. 8 of 2001. Under sections 2 of the Act, a child is defined as follows –
“child” means any human being under the age of eighteen years.
The child proposed to be adopted is BA According to her birth certificate No.[particulars withheld] issued on 27th May 2003, the said BA was born on 14th November 1988. The Originating Summons was filed on 5th May 2004 when she was stila a child. The guardian ad litem seems to have been appointed on 21. 05. 2004 by Hon. Justice Waweru. Thereafter the matter did not progress. There appears to have been changes of advocates from Janet Odero & Company advocates, to Joyce Migunda Majiwa advocates and finally to Amuga & Company advocates. The initial report of the Director of Children Services was filed on 10th November 2006, which was less than a week before the child attained majority age of 18 years. On the same 10. 11. 2007 Ms. Majiwa counsel for the applicants appeared before me and informed me that this matter, together with other related adoption matters were urgent. I declined to certify the matter as urgent and a hearing date was later taken in the registry for 1st December 2006. On that date, the matter was heard and judgment reserved for 9th February 2007. It was adjourned to 23. 3.2007. On 23. 3.2007, I gave a ruling that the matter appeared to be an international adoption caused asked the Director of Children Services to file another report addressing the international aspects of the proposed adoption. That report, dated 7th June 2007, was filed on 3rd July 2007.
It is possible that this application delayed because of changes of advocates and also because the applicants had filed a record total of seven (7) adoption applications. It is also possible that the counsel for the applicants did not progress this matter because they did not get instructions from the applicants who have been in the USA, and whose filed documents appear to have been prepared in the USA without them coming here to Kenya. Be that as it may, I cannot issue the adoption orders sought in this application, as the person to be adopted is above the age of 18 years. I will therefore dismiss the application on that legal technicality without going into its merits. The application is dismissed.
Dated and delivered at Nairobi this 5th day of November, 2007.
George Dulu
Judge
In the presence of –
Mr. Amuga for the applicants
Mr. Okumu holding brief for Mr. Amuga for the applicant
Mr. Wamakobe for Director of Children Service - absent
Eric – court clerk