[2023] KEHC 27182 (KLR)

In re BW aka BW (Minor) (Adoption Cause E046 of 2023) [2023] KEHC 27182 (KLR) (Family) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27182 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E046 of 2023

PM Nyaundi, J

December 1, 2023

N THE MATTER OF THE CHILDREN’S ACT ,2022 IN THE MATTER OF ADOPTION OF BW a.k.a BW (MINOR) AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY

In the matter of

JMM

Applicant

Judgment

1. This is a kinship adoption as the applicant is a first cousin to MWN the mother to BW the minor, whom she seeks to adopt vide Originating Summons dated 27thMarch 2023. The applicant is not married. She wishes to adopt the baby with the intention to formalize the relationship with the child that she has been taking care of since the demise of her cousin. The applicant has two grownup sons namely KJM and MNM.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 26th of October and 23rd of November 2023.

3. The Applicant is Kenyan Citizen and a Christian. She avers that she has the financial means and capability to take care of the Child. The applicant is a Managing Director at Enkorok Mara Camp Limited. She fully understands the consequences of an adoption order. She resides in [Particulars withheld].

4. The child, BW was born on 1st May of 2011 at Uzima Dispensary in Nairobi as per the birth certificate annexed serial number 8782877 to MWN. She raised her as a single mother until her death on 21st February 2020 due to septicemia as a result of retroviral disease caused by cryptococeal meningitis. MWN death certificate bears the serial number 1005XX4.

5. The grandfather of the child by the name FNM of Nationality Identify Number 052XX15 who is the only remaining parent of the mother (deceased) to the child signed a consent dated 15th November 2023.

6. Prior to the hearing of the adoption application, Little Angels Network issued a certificate serial No. 0XX2423 declaring the child free for adoption. On 13th July 2023 the Court appointed a Guardian Ad litem JN.

7. The Guardian Ad Litem, JN was present in Court. He confirmed that he assessed the Applicant. He presented his report dated 10th October 2023. He recommends that the Applicant be allowed to adopt the minor.

8. The minor was present in court. She stated that she understood she is in court for adoption. She consented to the same.

9. An officer of the Department of Children Services, Carolyne Olilo prepared a report dated 22nd November 2023 and countersigned by Mary Atati. The report established that the child was born in 2011 to her late 1st cousin MWN. She was supporting to raise the child in this matter financially as her late mother had financial challenges. They were close with the child’s late mother. She succumbed to Meningitis on 22nd February 2019. The extended family agreed that she would be the caregiver. These included her two sons who have received the child with a lot of acceptance as their sister.

10. The applicant has bonded with the child whom she considers as her own daughter. The child has been under her care since 2019.

11. The proposed Legal Guardian KJM attended court and confirmed he is willing to take up the role of legal guardian. He is the son of the applicant.

12. This is a kinship adoption under Section 193 of the Children Act, 2022 and Annex Cat Page 153 of the guidelines for Alternative family care of Children in Kenya, 2014 which defines Kinship adoption as adoption of a child by a person who is a relative of the child.

13. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.1).The Court may make an adoption order on application (1) by-A sole applicant; or Two spouses jointly.(2)The Court shall not make an adoption order in any case unless—The applicant has attained the age of twenty-five years, but is not above the age of sixty-five years: andThe applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

14. The Applicant is aged 53 years.

15. Article 53 of the Constitutionof Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child

16. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child.In all actions concerning children, whether undertakena.(1)By public or private social welfare institutions, courts of Law, administrative authorities, or legislative bodies—b.The best interests of the child shall be the primary consideration;c.The best interests of the child shall Include, but shall not be limited to the Considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is madethe order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

17. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicant. Accordingly, I allow the prayers sought in the Originating Summons dated 27th March 2023 and order as follows:I.The Applicant JMM be allowed to adopt BW A.K.A BW (Minor).II.The Child is to be known as BWM.III.The Child be presumed to be a Kenyan citizen by birth.IV.KJM is hereby appointed as legal guardian of the Child.V.The child’s date and place of birth to be 1st May 2011 at Uzima Dispensary.VI.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.VII.The Director of Immigration is authorized to issue the child with a Kenyan passport.VIII.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 1st DAY OF DECEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Kingoina Advocate for the Applicant