[2022] KEHC 14751 (KLR)

In re BT (Baby) (Adoption Cause E004 of 2020) [2022] KEHC 14751 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14751 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause E004 of 2020

JN Onyiego, J

November 4, 2022

In the matter of

FGK

1st Applicant

SMN

2nd Applicant

Judgment

1. Vide an Originating Summons dated 22nd December,2020, the applicants herein moved this court pursuant to sections 154, 158 (3) (a) 160 of the Children Act and Section 3A of the Civil Procedure Act seeking orders that;a.The requirements of Section 158 (3) (a) 158 (4) (a) of the children Act be waived as provided for by section 159 (1) of the children Act.b.That the applicants, FGK and SMN be authorized to adopt blessed T a minor born on the 12th May, 2018;c.That GNK and LWK be appointed guardians’ ad litem in this case.d.That the consent of the actual father of the minor Blessed Tulivu be dispensed with.e.That the Registrar General be directed to make in the adopted children’s register an entry to the effect that BT also known as DK Gacui is so adopted as per the particulars of the adopted child.

2. The application is based upon the averments contained in the statement of particulars sworn jointly by the applicants on 22nd December, 2020. The applicants are Kenyan citizens who were born in 1970 and 1963 respectively. They started cohabiting in 1996 and soon thereafter contracted their traditional marriage in 1997.

3. The couple has however not been blessed with any biological child hence the desire to adopt at least two children to complete a family. The first applicant is currently working at the prisons department as a documentation officer while the 2nd applicant is working at Pelican powers systems limited as an administration manager and personal assistant to the managing director.

4. Regarding the child said to have been born on 12th May, 2018, he is the biological child to one ROB. It is stated that when the baby was about three days old, the mother opted to give him up for adoption. Consequently, she approached Change Trust Adoption Society on 15th May 2018 seeking to surrender the baby for adoption purposes.

5. The reason given by Rebecca in releasing the child for adoption was that she was not ready for a child as she had conceived by mistake thus blaming herself for that mistake. After signing the necessary consent forms in the presence of her friend Mama Koech, she left the baby with Change Trust and continued with enjoying her freedom without any hindrance from parental responsibility.

6. Subsequently, the baby was committed to New Life Home Trust on 3rd March, 2019 vide Nairobi children’s court care and protection case No 259 of 2019. The child was then subjected to the adoption process. Through the case committee held by Change Trust on 26th July 2019, the child was declared free for adoption and subsequently placed under the care and control of the applicants on 6th September 2019, for the mandatory three months’ continuous period pursuant to section 157 of the children Act now repealed.

7. Upon instituting the proceedings herein, Leah Wambui and George Ngugi Kamau were appointed as guardians ad litem on 16th June 2012 .The Director Children Services was directed to file a social inquiry report within 30 days. Equally, the guardians ad litem were directed to file theirs within the same period.

8. Prior to the hearing, the director children services filed his report dated 28th July 2022 recommending the adoption. Equally, the guardians ad litem did file theirs on 18th August, 2022 also approving the adoption.

9. During the hearing, the applicants urged the court to allow the application for adoption. They confirmed that they were aware of the consequences of adoption and that it was permanent.

10. I have considered the application herein, testimony by the applicants and various stake holders. Issues that emerge for determination are;a.Whether the child is legally available for adoption.b.Whether the applicants are suitable to adopt the babyc.Whether the adoption is in the best interests of the child.

11. The baby herein was voluntarily given by the biological mother one Rebecca who claimed to have conceived by mistake from an unknown person. She signed the requisite consent pursuant to Section 158 of the repealed children Act and now section 186 (8) of the children Act 2022.

12. Regarding the baby’s nationality, it is evident that he is a Kenyan national as evidenced by the birth certificate documents attached to the application. He is above 6 weeks and below 18 years which provision falls within the minimum age bracket for any adoptive child pursuant to Section 156 of the now repealed children Act.

13. Besides, Section 157 of the then children Act now Section 185 (1) of the current Act provides that any child who is resident within Kenya maybe adopted whether or not the child is a Kenyan citizen, or was born in Kenya. I have no doubt the child has met the requisite conditions to be adopted hence suitable for adoption.

14. Concerning the parents, they are Kenyan citizens thus qualifying the adoption herein as a local adoption. Further, they are aged above 25 and below 65 years old which age bracket is in compliance with the repealed section 158 of the children Act. They have also been described as financially stable, Christians, loving, caring, socially upright and people with no criminal record.

15. Since placement, the child has fully bonded with the adoptive parents. They understand the consequences of adoption and that it is permanent. They are dedicated towards providing necessary requirements for the baby. To that extent, I have no reason to doubt the applicants’ suitability to adopt the baby.

16. Regarding the question whether the adoption is in the best interests of the child, Article 53 (2) of the Constitution and section 4(2) and (3) of the repealed children Act now Section 8 under the new Act are quite clear in that, before any decision affecting a child is made, the best interest of a child must be taken into consideration. This is the basic and paramount principle which a court of law is duty bound to uphold. See In the B (baby) 2018) e KLR.

17. The baby herein was given out by the mother who did not want to carry out any parental responsibility on grounds that she was not prepared for a child. She did not want anything to do with the baby. For his own safety, it was prudent for Change Trust Adoption Society to accept the offer from the mother to the baby to give out the child. The worst could probably have happened thus exposing the baby to danger.

18. Just like any other ordinary child, the baby is entitled to live a decent life which includes provision for good shelter, clothing, education, medical care and food. The child has fully integrated with the adoptive parents hence separating him from them would be disastrous to his future.

19. Accordingly, it is my holding that the adoption herein is in the best interest of the baby. Therefore, I am inclined to allow the application and make the following orders.a.That the applicants herein are hereby allowed to adopt baby Blessed Tulivu who hereafter shall be known as DKGb.That the child’s date of birth shall be 12th May,2018c.That the child is hereby declared a Kenyan citizend.That consent of the minor’s father is dispensed withe.That the Registrar General shall enter the adoption in the register of adopted childrenf.That Patrick Njenga a brother to the adoptive mother be and is hereby appointed as the legal guardian to the baby in case of any eventuality befalling the applicants herein.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF NOVEMBER, 2022. ...........................J.N.ONYIEGOJUDGE