[2022] KEHC 17224 (KLR)

In re EWM (Minor) (Adoption Cause E081 of 2021) [2022] KEHC 17224 (KLR) (Family) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17224 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E081 of 2021

EKO Ogola, J

December 1, 2022

N THE MATTER OF THE CHILDREN’S ACT, 2001 AND IN THE MATTER OF ADOPTION OF EWM (MINOR) AND IN THE MATTER OF AN APPLICATION FOR KINSHIP ADOPTION BY WMP

Judgment

1. Before this court is the Originating Summons dated June 29, 2022 by which the applicant WMP seeks the following orders: -a.Spent;b.That WMP of PO Box 32XXX-600 Ngara Nairobi within the Republic of Kenya be authorized to adopt EWM;c.That upon adoption, the minor to retain the names EWM;d.That upon adoption the Registrar General be directed to enter this adoption in the Adopted Child Register; ande.That the Court issue such orders as may be necessary in the best interest of the child.

2. The Originating Summons was supported by the Applicant’s Affidavit and canvassed by way ofviva voce evidence in open court.

3. The Applicant as PW1 testified that the EWM is his 14-year-old nephew whom he had been taking care of since birth because EWM’s biological parents could not afford the kind of education that he is capable of giving EWM. He further testified that he is a dual citizen of Kenya and the United States of America and that he resides in Ruiru, Nairobi and South Bend, Indiana States in the United States of America. He wishes to enrol EWM in quality schools both here in Kenya and abroad.

4. PW2 was PMW EWM’s biological father. He testified that the applicant is his brother-in-law and he agrees to have him adopt EWM.

5. PW3 was MWW EWM’s biological mother. She testified that she is married to PW2 and that WMP is her brother. She testified that she consents to have the applicant adopt EWM.

6. PW4 was one Jackline Wamboi Mwangi, an employee of Kenyan’s to Kenyan’s Peace Initiative (KKPI) Adoption Society. She testified that the society conducted a Home Study and prepared a report stating the suitability of the applicant as a prospective parent. a certificate declaring EWM free for adoption was issued.

7. PW5 was EWM. He testified that he is agreeable to being adopted by his uncle WMP. He testified that he knows WMP’s children with whom they share interests, and he believes he could live with them harmoniously.

Determination 8. I have carefully considered this application for adoption, the Affidavits and Reports on record as well as the relevant law. I have also considered the evidence adduced in open court.

9. This application is one for kinship adoption because the applicant is the child’s uncle. (see Section 2 of the Children’s Act). One of the applicant’s desires is for the child to receive education both in Kenya and the USA. This does not contravene the moratorium issued by the Cabinet Secretary on November 27, 2014 which involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenyan applicants, even those living abroad. Dual citizenship in Kenya is anchored in Article 16 of the Constitution.

10. A kinship adoption is a domestic adoption. In Adoption Cause 75/2017,JNA by Zoo and CAN the Court held that:-“According to the guidelines for alternative Family Care of Children in Kenya pg 153, kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child. Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoption. This is therefore considered to be a local adoption.”

11. Further to this, the requirements for kinship adoption are well set out in Part XIV of the Children’s Act. From the Court’s record, the applicant has been able to fulfil the conditions stipulated. The conditions are as follows:-a.The applicant is above twenty-five years of age and below sixty five years of age;b.The applicant is a relative of the child;c.The child has been declared free for adoption;d.That all the reports and evaluations conducted indicate that it is in the best interests of the child that the applicant adopts the child as demonstrated by the fact that they are family, and that the applicant has been educating and providing for the child since birth;e.That the child has given her consent to being adopted by the applicant; andf.That the biological parents have given their consent.

12. Further to the aforementioned conditions, the Applicant is engaged in gainful employment working as a machine operator in the USA earning an income of approximately Kshs 450,000/- per month. His house in USA and Nairobi are spacious enough for EWM and the applicant’s two biological children. He is also in good health and he has the potential to provide a good social life and religion to the child. In addition, the extended family is in support of this adoption application. The Applicant has also annexed his Certificate of Good Conduct issued by the Kenya Police Service, proving he has no criminal antecedents.

13. In court during the hearing, the child was pleased and enthusiastic about joining his new family. I also noted the very positive reference in support of the applicant’s adoption of the child.

14. In the end, I allow the Originating Summons dated June 29, 2022 in the following terms:-a.The applicant WPM is hereby authorized to adopt the child EWM.b.Ephraim Ndiritu is hereby appointed as legal guardians of the child EWM in the event the applicant is incapacitated or in any way unable to discharge his parental obligation.c.The Registrar General is hereby directed to make the appropriate entries in the Adopted Children’s Register.

It is so ordered.DATED and DELIVERED at NAIROBI this 1stday of December 2022**E.K. OGOLAJUDGEIn the presence of:Mr. Onindo for the ApplicantGisiele Muthoni Court Assistant.E.K. OGOLA J. Page 2 of 2