[2022] KEHC 14949 (KLR)

In re EW (minor) (Adoption Cause 11 of 2018) [2022] KEHC 14949 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14949 (KLR)

Republic of Kenya

In the High Court at Nyeri

Adoption Cause 11 of 2018

JN Njagi, J

November 2, 2022

Ruling

1. The applicants have filed an ex-parte chamber summons dated September 20, 2018 seeking for the following orders:1. That the applicants, JWW and NWW be authorized to adopt the child currently identified and known as EW.2. That the child be named as EWW.3. That the honourable court do declare that the child`s date of birth is September 17, 2014 and her place of birth is Kajiado County.4. That the child be presumed to be a Kenyan citizen, thus be entitled to the rights and benefits of a Kenyan citizen.5. That the guardian ad litem be discharged and SGK and MWG be appointed as the child`s legal guardians in the event that the applicants herein are incapacitated or in any way unable to discharge their parental obligations.6. That the Registrar-General makes the appropriate entries in the Adopted Children Register and do issue a certificate to that effect.7. That this court do issue such further orders as are in the interests of justice.

2. The application is supported by the averments contained in the statements in support thereof sworn by the applicants on September 20, 2018. The applicants have deposed that they are adult Kenyan citizens. That they are a married couple with one other adopted child. They have tried unsuccessfully to get a biological child of their own and eventually decided to go for adoption. The motivation to adopt the child herein has been ignited by the desire to give their son a sibling.

3. The documents filed in the matter indicate that the child herein was abandoned by her supposed mother on February 3, 2016 to a mandazi vendor within Kabiruini area, Ongata Rongai. The mandazi vendor kept the child for three days waiting for the child’s mother to return to no avail. The mandazi vendor reported the matter at Ongata Rongai Police Station vide OB No xx/xx/2016. The police investigated the matter but never managed to find the mother.

4. The child was taken to New Life Mission Samaritan Children’s Home and committed to the home on May 19, 2017 vide Protection and Care Case No 66 of 2017. Subsequently, the child was declared free for adoption by the Kenya Children’s Home Adoption Society under certificate serial number xxxx on 17//2019.

5. Upon instituting these proceedings, JWK was on November 2, 2019 appointed guardianad litem pursuant to Chamber Summons Application dated June 27, 2019. The Director Children Services and guardian ad litem were directed to file their respective social inquiry reports.

6. The Director Children Services through the County Children Coordinator, Nyeri County, filed his report on August 5, 2020 recommending the adoption. Equally, the guardian ad litem filed her report on May 3, 2021 recommending the same.

7. I have considered the application herein and the materials in support of the applications. My duty is to ascertain from the available evidence and material in support whether the child is available for adoption; whether the applicants are fit to adopt the child and most importantly, whether the adoption is in the best interests of the child.

8. It is clear that the child was abandoned when she was approximately eighteen months old. There is no doubt that she is above 6 weeks and below 18 years which period falls within the age bracket of any adoptive child pursuant to section 156 of the Children Act. Further, Section 157 does recognize any child who is resident in Kenya whether born in Kenya or not to be eligible for adoption. The child has already been declared free for adoption as required by the law. There is thus sufficient evidence that the child is fit for adoption.

9. Concerning the applicants’ suitability, they are Kenyan citizens thus qualifying the adoption to be a local one. The applicants are aged 62 and 46 years respectively which places them under the age bracket of not less than 25 years or more than 65 years for an adoptive parent in compliance with section 158 of the Children Act. The reports filed herein indicate that they are financially stable. The 1st applicant is a businessman while the 2nd applicant is a farmer. Their estimated monthly income is about Kshs 40,000/=. They have no criminal record. Since placement of the minor into their custody, the child has fully bonded with them. The applicants understand the consequences of adoption and that it is permanent. They appreciate the role of a parent and promise to treat the child like their biological child. I have no doubt that they have met the necessary requirements to adopt the child.

10. Article 53(2) of theConstitution and section 4(2) and (3) of the Children Actunderscores the best interests of a child as the primary consideration before making any decision concerning a child. A child needs basic necessities like food, shelter, education and clothing. The applicants in this matter are capable of providing these necessities to the child. It is in the best interests of the child that this adoption application be allowed.

11. Having satisfied myself that the application has complied with the law, I do allow the application as prayed.

SIGNED THIS 14TH DAY OF SEPTEMBER, 2022. JN NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. By:HON JUSTICE M MUYAJUDGEIn the presence of:Applicants: Mrs KemenyiCourt Assistant: Kinyua.30 days R/A