[2022] KEHC 13626 (KLR)

In re FM (Baby) (Adoption Cause E020 of 2021) [2022] KEHC 13626 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13626 (KLR)

Republic of Kenya

In the High Court at Kiambu

Adoption Cause E020 of 2021

MM Kasango, J

October 6, 2022

N THE MATTER OF THE ADOPTION OF FM (MINOR)

In the matter of

GNN

1st Applicant

RWNN

2nd Applicant

Judgment

1. The applicants by their originating summons dated October 22, 2021 seek to be allowed to adopt the child known as FM.

2. The child was the subject of a previous attempt to adopt her by a single lady. She was placed into the care of that lady on December 9, 2015. That lady had named the present applicants as the prospective legal guardians. However, before the adoption was concluded the single lady became ill and was admitted into hospital. While she was in hospital the child lived with the applicants. The single lady died in a hospital on July 29, 2017 and the child has continued to date to be under the custody of the applicants.

3. The child who is now 15 years old was abandoned on July 12, 2006 by a lady who left the child in a house that belonged to a lady known as LA at Soweto slums. The lady who abandoned the child left her at that home on pretext that she was going to the shops and would return to that home to take the child. The lady did not return and on July 13, 2006 the matter was reported to Soweto police station under OB NO xx/xx/x/xx. The child was referred to Amani Children’s Home while investigation of the whereabouts of her biological parent/s commenced. The search of the child’s biological parent/s has not to date borne fruits. The child was declared free for adoption on November 14, 2015, by Change Trust, an adoption society.

4. The applicants, GNN and RWNN are husband and wife. They were married on August 29, 1981. They were blessed with three children. One of those children is deceased. The other two are a girl born in 1985 while the boy was born in 1992. The applicants have proposed their daughter and her husband who reside in [particulars withheld], to be appointed the legal guardian of the child. The male applicant is 71 years old while the female is 63 years old.

5. Section 186(2)(a) of the Children Act 2022 provides:-“The court shall not make an adoption order in any case unless:-a.The applicant has attained the age of twenty five years but is not above sixty five years;”

6. From that provision it became clear that the male applicant is above the age limit which the court is permitted to grant adoption order. Section 186(5) of the Children Act2022 provides that in cases where adoption is prohibited under that section 186 the court can nevertheless make an order for adoption if ‘satisfied’, on reasons to be stated on the record that there are special circumstances that warrant the making of the adoption order an applicant or joint applicants who has or both have attain the age of sixty five years.

7. The children’s officer’s report captures the reasons that can be advanced to approve the application for adoption notwithstanding that the male applicant is beyond the age limit for adoption: 65 years. The children’s officer by the report before court stated:-“… given the fact that the child was abandoned and no relative has ever been found, I reasonably believe that she is available for adoption and was properly free for the same…The child had initially been placed with the female applicant’s sister who died both applicants had been proposed as legal guardians and when the applicant died they stepped into her shoes and continued the process.”

8. The child is presently 15 years old and as required under section 186(8)(C) of the Children Act2022the child has given a detailed written consent to this adoption. Reading through that consent, one gets a sense of a child who has been welcomed into the family of the applicants and she has bonded well with all of them. She refers to the applicants’ biological children as brother and sister. She shares in that consent, the love the brother and sister have shown her and describes the presents they have showered her with. This child has been in the applicants’ home since 2017. The child proudly referred to how happy she is with her prospective adoptive parents and further takes pride in having her own bedroom.

9. The applicants have proved their ability to care for and provide education to the child.

10. In my view, the documents before me clearly shows that the adoption is in the best interest of the child. The alternative to granting the order is to have the child returned to the children’s home yet she has what she now regards as her family. It is in the best interest of the child not to break the relationship she has built with the applicants and their children. The best interest principle must involve child centered analysis. The focus I will chose is that the adoption is in the best interest of the child and not to focus on the age of the male applicant. The child has an attachment with the applicants and it would be too disruptive to decline the order for her adoption by the applicants.

11. The judgment of this court is as follows:-a.That the applicants RWNN and GNN and hereby allowed to adopt the child currently identified as FM but who shall henceforth be renamed FWM.b.That the child’s date and place of birth is hereby declared to be July 7, 2006. c.Thatthe child is hereby presumed to be a Kenyan citizen by birth.d.That DWN and GRG are hereby appointed as legal guardians of the child consequently the guardian ad litem is discharged.e.Thatthe consent to this adoption of the biological parent/s or guardian is hereby dispensed with.f.That the Registrar General is directed to make the appropriate entries in the Adopted Children’s Register.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- MouriceFor Applicants: Ms. KimenyiCourtJudgment delivered virtually.MARY KASANGOJUDGE