[2023] KEHC 25466 (KLR)

In re D (Chi;d) (Adoption Cause 13 of 2022) [2023] KEHC 25466 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25466 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause 13 of 2022

G Mutai, J

November 15, 2023

IN THE MATTER OF THE CHILDREN ACT, 2022 AND IN THE MATTER OF BABY UNKNOWN NEWLY BABY BOY, AKA D (A CHILD) AND IN THE MATTER OF AN APPLICATION FOR ORDERS OF ADOPTION OF BABY UNKNOWN NEWLY BORN BABY BOY, AKA D (A CHILD), BY SBK AND EMB -THE JOINT APPLICANTS

Between

SBK

1st Applicant

EMB

2nd Applicant

and

The Little Angels Network

Respondent

Judgment

Introduction 1. The Joint Applicants are an African married couple of male and female gender respectively. They were born on 15th January 1965 and 1st March 1968 and got married on 5th December 1998 at Kibokoni 1 [Particulars withheld] Church, Kilifi. They have two biological daughters, SMS and SMS, and an adopted daughter, Comfort B. S. The couple reside at Shariani within Kilifi County in the Republic of Kenya.

2. The joint applicants profess the Christian faith, are of sound mind and have no criminal record. They have had custody of the child since 23rd December 2020. If the adoption application is successful, they propose to name the child IAS.

3. In order to obtain the necessary orders, the joint applicants filed the instant originating summons dated 10th June 2022 on 12th July 2022. Vide the said summons, they sought the following orders:-1. Pursuant to Article 14(4) of the Constitution of Kenya 2010 and Section 11 of the Children Act, 2001, this honourable court be pleased to declare the child Baby Unknown Newly Baby Boy, aka D, as a Kenyan citizen by birth;2. Pursuant to the provisions of section 159 of the Children Act, 2001, this honourable court be pleased to dispense with the requirement of the consent to the adoption as required by the provisions of section 158 of the Children Act, 2001;3. The applicants, SBK and EMB, be authorized to adopt Baby Unknown Newly Baby Boy, aka D, a child;4. Upon the making of the adoption order, DKM be appointed a guardian of the child as provided for by the provisions of section 164 of the Children Act, 2001;5. Upon the making of the adoption order, the Registrar General do make an entry recording the adoption and the estimated date of birth of the child as 14th March 2017 in the Adopted Children Register as provided for by section 170 of the Children Act, 2001; and6. The costs of this application are costs in the cause.

4. The joint applicants attached to their application copies of their national identity cards, marriage certificate, police clearance certificates, various records from the National Police Service, certificate of declaring a child free for adoption (serial number xxx), together with the relevant report from Buckner Kenya Adoption Services, preplacement report and other relevant documents from the Little Angels Network and Infant/Child Release Agreement entered into by the joint applicants and the Nest Children Home.

5. The Originating Summons was filed together with a Chamber Summons also dated 10th June 2022, vide which it was sought to have Beatrice Mwaringa Lugwe of Kilifi County appointed as a guardian-ad-litem of the child. The joint applicants also sought to have the guardian-ad-litem (once appointed) and the Director of Children Services to prepare and file the relevant reports within 14 days.

6. Regarding the adoptive child, Baby Deene was presumably born on 3rd January 2020. He was abandoned in a pit latrine near Harvest Church, Kangemi, Nairobi and was rescued by Mr Henry Mukhwana and Mr James Irumi, who took him to Kabete Police Station, where the incident was recorded vide OB No xxx/3/1/2020. The child was admitted to the Nest Children’s Home for care and protection on the said date. He was committed to the care and protection of the said home vide the Nairobi Children's Court Care and Protection Cause No 095 of 2020 for a period of 3 years.

7. The parents of the child are unknown. Since being found, no one has claimed him. It is evident that no one will ever claim him.

Court Proceedings 8. This matter was filed on 12th July 2022 before the Children Act, 2022 commenced. Since the proceedings took place in 2023, I shall rely on the new Act.

9. The Chamber Summons application dated 10th June 2022 was heard on 19th April 2023. After hearing the testimony of Ms Beatrice Mwaringa Lugwe and being satisfied that she had the necessary qualifications I appointed her as the guardian-ad-litem in respect of this adoption and ordered her to prepare and file the social inquiry report within 30 days. I also made similar orders with respect to the Director of Children Services. I set down the origination summons, the substantive matter, for hearing on 25th May 2023.

10. The Originating Summons was heard on 25th May, 4th October and 8th November, 2023. The first witness was Joshua Mwalimu Wambua, a social worker with the Little Angels Network. He testified that his employer approved the applicants for adoption. In his opinion, the child had bonded well with the applicants since being released to them on 23rd December 2020. He recommended the adoption. The joint applicants were the 2nd and 3rd witnesses. They each testified that they knew the implications of adoption. They are aware that adoption is permanent. Having adopted another child, they are familiar with the process. The guardian-ad-litem was the 4th witness. She testified that she visited the home of the adoptive parents. In her opinion, the joint applicants live in a good home. She also recommended the adoption. The fifth witness was Mr. DKM. Mr Mzungu is a pastor with Shariani Light of God Pentecostal Church. He is the brother of the 2nd applicant. He testified that he was willing to be the legal guardian of the child should the applicants die or be otherwise unable to take care of the child before he reaches 18 years of age. The last witness was Ms Winfred Kambua Kaluku, the Children Coordinator of Kilifi County. Ms Kaluku testified that she visited the home of the joint applicants on 11th October 2023. She stated that she observed the interaction between the joint applicants and the child and established that they had bonded well. Consequently, she recommended the adoption.

Analysis and Determination 11. I have considered the application herein, the documents in support and evidence of the various witnesses and the issues that emerge for determination by me are whether the baby is available for adoption, whether the applicants are fit to adopt the baby and most importantly whether the adoption is in his best interest.

12. I have already set out the circumstances under which the child was found. The child was abandoned by the mother at birth. Nobody has come forward to claim the child. The need for consent pursuant to sections 186(8) and 187 of the Children Act, 2022 is therefore dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”

13. Regarding the baby’s nationality, it is clear from the evidence adduced that he was found abandoned in a pit latrine near Harvest Church Kangemi on the day of his birth. Article 14(4) of the Constitution of Kenya, 2010 recognizes that a child who is less than eight years of age and whose nationality and parents are not known is presumed to be a Kenyan citizen by birth. In view of this provision, I presume and hold that the subject child is a Kenyan citizen by birth.

14. In terms of age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby pursuant to Section 184 (b) of the Children Act, 2022. Further, Section 185(1) does recognize any child who is resident in Kenya, whether born in Kenya or not, to be eligible for adoption. I have no doubt the child is fit for adoption.

15. Concerning the joint applicants’ suitability, they are Kenyan citizens aged 58 and 55 years, respectively, which places them under the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. The applicants have been described as financially stable. They have no criminal record. Since the placement of the minor into their custody, the child has fully bonded with them. They also understand the consequences of adoption and know that once an adoption order is made, it is permanent. They appreciate the role of a parent and aver that they will treat the baby like their biological child.

16. Consequently, I do not doubt that they have met the necessary requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bringing up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”

17. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.

18. Further, the court in the case of In re MA (Baby) [2021] eKLR stated: -“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”

19. The child herein was found abandoned. He, therefore, needs basic necessities like food, shelter, education and clothing. He has fully integrated with the applicants. It is obviously in the best interests of the child that this adoption application be allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated: -“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the best interests of the child are paramount.”

Disposition 20. Based on the foregoing, I find and hold that the adoption application has merits. Consequently, I issue the following orders: -1. The child Baby Unknown Newly Baby Boy, aka D, is hereby declared a Kenya Citizen by birth pursuant to Article 14(4) of the Constitution of Kenya, 2010 and Section 7(1) of the Children Act, 2022;2. The requirement of the consent of the biological parents of the child to the adoption under section 186 of the Children Act, 2022 is hereby dispensed;3. The applicants, SBK and EMB, are hereby authorized to adopt Baby Unknown Newly Baby Boy, aka Deene, who shall henceforth be called IAS;4. DKM is hereby appointed as the legal guardian of Baby David Jakinda in the event the joint applicants become deceased or are otherwise permanently unable to take care of Baby IAS before he attains the age of majority;5. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the estimated date of birth of the child as being 17th March 2017 in the Adopted Children Register; and6. The guardian-ad-litem Beatrice Mwaringa Lugwe is hereby discharged.Orders accordingly.

DATED, DELIVERED AND SIGNED THIS 15TH DAY OF NOVEMBER 2023 AT MOMBASA VIA MICROSOFT TEAMS.……………………………GREGORY MUTAIJUDGEIn the presence of: -Ms. Mbithe Muendo holding brief for Ms. Katisya for the joint applicants; andMr. Arthur Ranyondo – Court Assistant.