[2021] KEHC 13545 (KLR)
The court held that the statutory requirement under section 156(1) of the Children Act, which mandates that a child must be declared free for adoption by a registered adoption society before adoption proceedings can commence, is couched in mandatory terms. Despite the applicant's suitability and the best interests...
Source-derived case information.
- Citation
- [2021] KEHC 13545 (KLR)
- Parties
- Applicant: LWK
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 243 of 2015
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- application dismissed
- Judges
- AO Muchelule
- Legal Topics
- Adoption Procedure, Child Welfare, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
LWK
Applicant
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the applicant has satisfied the statutory requirements for adoption under the Children Act.
- 2 Whether the absence of a freeing certificate precludes the grant of an adoption order.
- 3 Whether the best interests of the child can override the mandatory statutory requirements.
Ratio Decidendi
The court held that the statutory requirement under section 156(1) of the Children Act, which mandates that a child must be declared free for adoption by a registered adoption society before adoption proceedings can commence, is couched in mandatory terms. Despite the applicant's suitability and the best interests of the child, the absence of a freeing certificate is a fatal defect. The court cannot ignore or override clear statutory requirements, even in the face of compelling welfare considerations. Therefore, the application for adoption must fail for non-compliance with the law.
Court Disposition
application dismissed
Orders
- The Originating Summons for adoption is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
ADOPTION CAUSE NO. 243 OF 2015 (OS)
IN THE MATTER OF THE CHILDREN ACT, 2001
AND
IN THE MATTER OF AN APPLICATION FOR AN ADOPTION OF BABY EMN
IN THE MATTER OF AN APPLICATION FOR ADOPTION BY
LWK…..…………..………APPLICANT
JUDGMENT
1. The applicant LWK is a single Kenyan woman aged 53 years. She is a civil servant currently employed with the [particulars withheld]. She has no children. She filed this originating summons dated 25th November 2020 seeking to adopt Baby ENM.
2. Baby ENM. was born on the 9th September 2009 at Naivasha District Hospital to a HIV positive street mother who abandoned her immediately after birth. The matter was reported to Naivasha Police Station vide O.B. No. xx/x/x/xxxx. Through the Naivasha District Children Officer, the baby was temporarily placed at Rehema PEFA Children’s Home. She was formally committed to the Home by the Naivasha Children Court in Protection and Care Case No. xxx of 2009. Police efforts to trace the mother or relatives of the child were not successful. The freeing certificate has not been availed by the Applicant nor the Child Welfare Society. The Applicant has been with the child since the 11th January 2011 when the child was placed with her for foster care.
3. On the 15th July 2021, the court appointed MNK as the guardian ad litem and ordered her within 45 days to prepare and file the requisite reports after carrying out a social inquiry on the applicant to determine her suitability to adopt the child. On the 5th September, 2019, similar orders had been given to the Director of Children Services. The two reports were filed both recommending that the applicant be allowed to adopt the child, subject to the Child Welfare Society availing the freeing certificate for the child. The reports found that the applicant was socially, emotionally and financially stable and suitable to adopt the child. It was also found that the child and the applicant had bonded well.
4. Section 156(1), of the Children Actprovides as follows:
“No arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with this rules prescribed in that behalf.”
5. It is evident that this child has not been freed for adoption, and no certificate in that regard has been filed. Ever if the court were asked to consider the best interests of the child under section 4(2) and (3) of the Act, the provisions of section 156(1) of the Act are in mandatory terms. The court has to ensure that the provisions of the Act are adhered to by an applicant seeking to adopt a child.
6. Given these circumstances, I refuse to allow the adoption. The Originating Summons is consequently dismissed.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2021.
A.O. MUCHELULE
JUDGE