[2022] KEHC 15899 (KLR)

In re FK (Minor) (Adoption Cause E035 of 2022) [2022] KEHC 15899 (KLR) (Family) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15899 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E035 of 2022

MA Odero, J

November 4, 2022

In the matter of

PWN

Applicant

Judgment

1. Before this court is the originating summons dated December 17, 2021 by which the Applicant seeks the following orders:-'1. That the Applicant, PWN, be allowed to adopt the child currently identified as FK.2. That henceforth, the child is named FKN.3. That VWM be appointed as Legal Guardian of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.4. That the guardian ad litem be discharged.5. That the Registrar General be directed to make the appropriate entries in the Adopted Children’s Register.6. That this court do issue such further orders as are in the interest of justice.'

2. The application was supported by the Statement of even date sworn by the Applicant. The matter was canvassed by way of viva voce evidence on the virtual platform.

3. The Applicant is a single woman who has never been married and has no biological child of her own. She seeks to adopt the Subject Child who is a twelve (12) year old boy. The Child is related to the Applicant being the son of her nephew. The Childs mother died in the year 2012 and since then the Applicant has been assisting in the upkeep and maintenance of the child. The Applicant now wishes to adopt the Child in order to provide him with a stable home environment.

4. The Applicant confirms that she understands the legal implications of an adoption order. She undertakes to accord the Subject Child all rights due to a biological Child including the right to inherit.

Analysis and Determination 5. I have considered this application, the Reports filed in court as well as all the evidence adduced in support thereto. The prerequisites for adoption are set out in Section 184 (1) of the Children Act 2002 which provides –'184(1)A person shall not commence any arrangements for the adoption of a child unless –a.The counsel in accordance with the rules has declared the child free for Adoption.b.The child has attained the age of six weeks.'

6. The Subject Child was born on December 26, 2009. A copy of the Childs Birth Certificate Serial Number xxxx appears as Annexture PN ‘15’ to the summons. Therefore the subject Child is now aged twelve (12) years old and is well above the six (6) week age limit provided for in the Act.

7. KKPI Adoption Society a registered adoption agency have annexed to their report filed in court on September 19, 2022 a copy of their Certificate Serial Number xxxx dated July 28, 2021 declaring the Child Free For Adoption. Accordingly, I am satisfied that all the legal prerequisites for adoption have been met.

8. The duty of this court is to analyze the evidence presented to it to determine whether the Applicant is a suitable adoptive parent.

9. The Applicant is a Kenyan citizen who resides in the USA. Annexed to the summons is a copy of her National Identify card (Annexture ‘PN4’). The Applicant told the court that she has never been married and has no biological children of her own.

10. The Applicant stated that she wishes to adopt the Subject Child who is the son of her nephew because since the death of the Childs mother the father who does casual jobs has been unable to adequately meet the Childs needs. The Applicant states that she has been providing assistance towards the Childs maintenance and education.

11. The Applicant further stated that the child who is a teenager lacks guidance and mentoring from a mother which role the Applicant believes she can play in the life of the child. She also stated that the Childs father is often absent from the home subjecting the Child to the risk of molestation from unsavory elements in the vicinity. She believes that this adoption will protect the child from such risks.

12. The Applicant is a Christian and intends to raise the Child in the Christian Faith. The applicant who resides in [particulars withheld] USA works as a Senior Nurse earning approximately Kshs 800,000 per month which is more than adequate to provide for the needs of the Child. She annexed copies of her payslips issued by her employer [particulars withheld] (Annexure ‘PN6’). The Applicant has also annexed copies of her Bank Statements for an account she holds with Digital Federal Credit Union (Annexture ‘PN7’). I am satisfied that the applicant is financially secure and is able to provide for the needs of the child.

13. The Applicant was examined by a doctor and was found to be physically and mentally fit. She has annexed a copy of a clearance certificate issued to her by the Directorate of Criminal Investigations proving that the Applicant has no criminal record (Annexture PN ‘9’).

14. The Applicant has appointed as legal Guardian for the Child VWM who is her cousin and close friend. The said legal Guardian has signed a consent dated July 22, 2021 indicating her willingness to act as the Childs legal guardian (Annexture PN ‘11’). Finally, the Applicant told the court that her extended family support and approve of her intention to adopt the child and that the Childs biological father has given his consent to the adoption. All in all I am satisfied that the Applicant is a suitable adoptive parent.

15. Section 186 (8) of the Children Act 2022 provides for consents to adoption as follows:-'(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons— (a) a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child;(b)(c)'

16. The Childs biological father ENK did testify in this matter. He confirmed that he was the Childs father and told the court that his wife who was the Childs mother passed away in November 2012. A copy of the Death Certificate Serial Number xxxx is annexed to the summons (Annexture ‘PN 17’) confirming the demise of the Childs mother.

17. The Childs father told the court that he has struggled in his role as a single parent and has had great difficult in looking after and providing for the Child. He stated that he does causal work, which necessitates that he is regularly away from the home leaving his two (2) young children to fend for themselves in an unsafe environment.

18. The father confirms that the Applicant is his Aunt being the sister to his mother. He told the court that he is aware of and fully supports her application to adopt the child, as he believes that the Applicant is in a position to provide the child with the motherly love he needs. The Childs father confirmed that he understood that an adoption order once made was irreversible.

19. The father signed the certificate of Acknowledgment confirming that the Adoption Agency had explained to him the consequences of a legal adoption. The father also signed an Affidavit of consent (Annexture ‘PN 22’) dated June 29, 2021, which consent he confirmed in court. I am satisfied that the consent of the Childs biological father has obtained as required by law.

20. Section 186 (8) of the Children Act 2022 provides for consents to adoption as follows:-

'(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons—(a)(b)(c) In the case of a child who has attained the age of ten years, the child himself or herself.' 21. The Subject Child also gave evidence in this matter. Being aged twelve (12) years the Child was old enough to speak for himself. The Child told the court that he lives in Gatundu with his father. He confirmed that his mother died in the year 2012. The child confirmed that he knew the Applicant as his grandmother. The child told the court that he knew what adoption was, that it would make him the child of the Applicant. He stated that he was aware of the application to adopt him made by the applicant and that he readily consents to the same.

22. The Child signed a letter of consent dated September 22, 2022. Accordingly, I am satisfied that the child has given his consent to the Adoption.

23. Section 8(1) of the Children Act 2022 provides as follows:-'8(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of 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.'

24. This a Kinship adoption as envisaged by Section 193 of the Children Act 2022. The Applicant is a relative of the child. The Child will remain within the same family unit and will have regular contact with his blood relatives. The adoption will enable the child to be raised in a secure environment and will enable him to receive guidance and mentorship from a mother figure.

25. I have perused the Reports prepared by the Guardian Ad Litem, the Adoption Agency and the Director Childrens Services. All three reports are positive and all recommend the adoption. I am satisfied that the adoption does serve the best interest of the child.

26. Finally, I do allow this application and make the following orders-1. The Applicant, PWN, is hereby authorized to adopt the child known as FK.2. Upon adoption the child will be known as FKN.3. The Registrar General is directed to make the relevant entry in the Adopted Children’s Register.4. VWM be appointed is appointed as Legal Guardian of the child.

Dated in Nairobi this 4th day of November, 2022. MAUREEN A. ODEROJUDGEADOPTION CAUSE E035 OF 2022 JUDGMENT