[2023] KEHC 20059 (KLR)

In re DAO alias AE (Baby) (Adoption Cause E034 of 2023) [2023] KEHC 20059 (KLR) (Family) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 20059 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E034 of 2023

PM Nyaundi, J

June 30, 2023

IN THE MATTER OF THE CHILDREN’S ACT, 2022

IN THE MATTER OF ADOPTION OF BABY DAO ALIAS AE

AND IN THE MATTER OF AN APPLICATION FOR ADOPTION

BY JMN

Judgment

1. The Applicant, JMN vide Originating Summons dated March 15, 2023 has made an application for the adoption of baby DAO alias AE the child herein. The applicant is not married. She wishes to adopt the baby with the intention to change a life by giving a deserving family to belong to. Also she medically diagnosed with a small uterus and as such she opted for the adoption.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on June 22, 2023.

3. The Applicant is Kenyan Citizen and of the Christian faith. She avers that she has the financial means and capability to take care of the Child. The applicant is a secretary at (particulars withheld) School (particulars withheld) Nairobi. She has had custody of the child since July 16, 2022. She resides in Kawangware. She fully understands the consequences of an adoption order.

4. The child is a female child born on July 22, 2020 and her birth notification bears the serial number 746xxx. The child was found abandoned at (particulars withheld) Su-County Hospital by her mother, DA after delivery. The hospital management stated that after the mother delivered, she refused to breastfeed and take care of the child. DA informed the hospital that it was against the Luhya culture to breastfeed a child conceived through incest.

5. Additionally, she also stated that the child can be sold or killed. She later absconded the hospital leaving her behind. The matter was reported at Ol-Kalou Police Station by a nurse from the hospital one Naomi Kituku,where the abandonment was recorded and booked vide Occurrence Book Number 34/xx/xx/2020.

6. On July 30, 2020, Ol-Kalou Police Station issued an initial letter addressed to New Life Home Trust. The letter confirmed the child’s abandonment and stated that matter had been reported at the station by the Hospital’s nurse. The letter also stated that the children’s officer had been alerted about the abandonment. On September 18, 2020, Nyandarua central Sub-county children’s officer wrote a letter addressed to J M Hospital –Ol-Kalou requesting that the hospital release the child to New Life Home Trust for care and protection.

7. The child was discharged from (particulars withheld)County Hospital and admitted to New Life Home Trust on September 18, 2020. On November 27, 2020, Nyandarua central Su-County Children’s Officer wrote a report addressed to Nyahururu Children’s court. The report confirmed the abandonment and recommended the child to be committed to New Life Home Trust for a period of three (3) years. The child was committed to the New Life Home Trust by order of the Nyahururu Children’s Court vide Protection and Care Case No. E020 of 2020.

8. On January 26, 2022, Ol-Kalou police station issued a letter addressed to New Life Home Trust. The letter stated that since the day the child was abandoned, nobody ever came forward to the station to claim the child and therefore, they had no objection to the legal procedure that would be carried in the best interest of the child.

9. Prior to the hearing of the adoption application, Little Angels Network Adoption Society issued a certificate serial No 002262 declaring the child free for adoption. The Court appointed a Guardian Ad litem Rehema Juma Ufunguo.

10. The Guardian Ad Litem, Rehema Juma Ufunguo was present in Court and presented her report dated May 9, 2023. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She recommends that the Applicants be allowed to adopt the baby .

11. An officer of the Department of Children Services, Carolyne Olilo prepared a report dated June 19, 2023 and countersigned by Mary Atati. The report established that the child was abandoned at (particulars withheld) Su-County Hospital by her mother, DA after delivery. The mother refused to breastfeed and take care of the child as it was against the Luhya culture to breastfeed a child conceived through incest. The matter was reported at Ol-Kalou Police Station by a nurse from the hospital one Naomi Kituku,where the abandonment was recorded and booked vide Occurrence Book Number 34/xx/xx/2020, on July 30, 2020.

12. The Report further documents that vide letter dated January 26, 2022; the Police confirmed that neither the mother nor other relatives of the child had come back to claim the child. For this reason, the Department of Children Services confirms the child is free for adoption. The Child was placed with the Applicant on July 16, 2022.

13. The proposed Legal Guardian BK, SM AND TM attended court and confirmed they are willing to take up the role of legal guardian.

14. 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.The court may make an adoption order on application by-(1)(a)Sole applicant; or(b)Two spouses jointly.(2)The court shall not make an adoption order in any case unless-i.the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; andii.The 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

15. The Applicant is 40 years.

16. Article 53 of the Constitution of 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

17. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child. In all actions concerning children, whether undertaken. (1)By public or private social welfare institutions, courts of the law, administrative authorities, or legislative bodies-(a)The best interests of the child shall be the primary consideration;(b)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;

18. 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 Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated March 15, 2023 and order as follows:i.The Applicants JMN be allowed to adopt baby DAO alias AE.ii.The Child to be known as JJMiii.The Child be presumed to be a Kenyan citizen by birth.iv.The Child’s date and place of birth are presumed to be July 22, 2020 at J M Kariuki Hospital, Nyandaruav.BK, SK AND TM are hereby appointed as legal guardians of Child.vi.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.vii.The Director Immigration is authorized to issue the child with a Kenyan passportviii.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 30th DAY OF June, 2023. M NYAUNDIHIGH COURT JUDGEIn the presence of:Court Assistant