[2022] KEHC 10825 (KLR)

In re FWW (Subject) (Adoption Cause E008 of 2021) [2022] KEHC 10825 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10825 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause E008 of 2021

TM Matheka, J

June 9, 2022

IN THE MATTER OF THE CHILDREN’S ACT NO.8 OF 2021 AND IN THE MATTER OF AN APPLICATION BY CWW AND

IN THE MATTER OF ADOPTION OF FWW (SUBJECT)

In the matter of

CWW

Applicant

Judgment

1. Before court is an originating summons dated May 6, 2021 in which the applicant is seeking to adopt baby FWW

2. The application is supported by an affidavit of the applicant CWW sworn on May 6, 2021. She deponed that she is a Kenyan holder of National Identity Card Number xxxxxxxx and a dual citizenship for Kenya and America.

3. She stated that in Kenya she has a permanent residence in [Particulars withheld] Estate Molo Township within Nakuru County while in the United States of America she resides in Portland Town of Oregon City within Washington State.

4. She averred that she is a widow her husband having passed on in the year 2006, that subject herein is a minor aged 15 years and her granddaughter, daughter to her daughter one JWW who is a single parent and struggling in life.

5. She averred that she wishes to adopt FWW who is a school going as her daughter as she is financially capable to take care of all her needs and that her said daughter JWW and the subject have consented to this adoption.

6. She is employed and working as a CNA with [Particulars withhed] Nursing Home and Rehabilitation in United States of America and has four children who are adults.

7. The legal guardian one JNR swore an affidavit in which he clearly consented to being appointed as a legal guardian to the subject herein.

8. This court on June 2, 2021 appointed JNN as the guardian ad litem.

9. This matter was orally heard on December 9, 2021.

10. PW1 - The applicant CWW in her testimony reiterated the averments contained in her Supporting Affidavit. She also stated that her four children who are adults have no objection to this application.

11. PW2 - The legal guardian JNR also testified in support of this application. He stated that the applicant is his aunt and she is capable of raising the subject, that he understands his role as a legal guardian, to ensure that the child is well taken care of, fed, clothed, educated and when ill treated, to report such to relevant authorities. PW2 has taken this responsibility freely/voluntarily.

12. PW3 - JWW testified that she is the mother to the subject and she has consented to the adoption of the minor.

13. PW4 - FWW, the subject herein, testified that she is sixteen (16) years old and confirmed that the applicant is her grandmother and had no objection to this application being granted.

Issues for Determination.Whether the applicant is fit to adopt the minor; and

Whether adoption is in the best interests of the children.

Issue No.1 - whether the Applicant is fit to adopt the minor 14. There is a report filed on December 6, 2021 supporting the originating summons. It is filed by the KKPI adoption Society. There is also another report by KKPI Adoption Society filed on 11th November 2021 and guardian ad litem report filed on 2July 8, 2021 recommending that the applicant is fit to adopt the subject. Further the said KKPI Adoption Society has given a certificate dated June 16, 2021 declaring the child free for adoption

15. There is also a report filed by the applicant’s pastor Isaac Kangara of the Fountain Gateway Church in Oregon recommending her as suitable having adopted and raised the elder sister of the subject herein.

16. The legal guardian has also confirmed that he is ready and willing to step in should the applicant be unable to discharge her parental responsibility to the child.

17. Evidence of the mother of the subject demonstrated that the applicant is capable of raising the subject. The subject who is 16 years old also is agreeable to being adopted by the applicant.

18. From the foregoing, it is my considered view that the applicant is able and willing to adopt the child and that she will ably provide for the child

19. Age wise, the applicant has not attained the age of 65 years hence she has fulfilled all the requirements for a proposed adoption parent.

Issue No. 2- Whether adoption is in the best interests of the children 20. The adoption sought is within the family, as it is grandmother of the child who is seeking to adopt her granddaughter.

21. On kinship adoptions, the court in In re JNA [2018] eKLR, said:According to the Guidelines for Alternative Family Care of Children in Kenya page 153,“Kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child.”

22. In Re Baby PSM [2020] eKLR, the court observed that:“The best interests of a child principle is the key consideration in determining the nature of any decision to be taken touching on the affairs of a child. This is a paramount requirement under article 53(2) of the Constitution and Section 4(2) and (3) of the Children’s Act (see Re of Baby KR (2015) eKLR 2015. Similar position was held in the case of In Re CA and KA (both minors) (2014) eKLR where the court held that:-“It is therefore not in doubt that when a court determines any question with respect to:-The upbringing of a child; or the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.”In the instant case, the minor herein is a nephew to the applicants who is in need of support and provision of basic necessities like food, education, shelter, clothing and medical care among other provisions. The applicants have come in handy and at the hour of need. They and their children have fully bonded with the minor. They all understand the consequences of this adoption. It will be in the best interests of the child to be adopted by parents who are ready and willing to relief the minor’s biological parents a huge burden off their shoulder otherwise, the boy’s bright future will be compromised if this application is rejected.”

23. In the instant cause, there is evidence that the subject is a granddaughter to the applicant. The subject has no objection being adopted by the applicant. In addition the mother of the child is not financially able to take care of her and she has consented to this adoption cause being made in favour of the applicant. The applicant is financially endowed and thus capable of providing for the minor’s basic needs and therefore this application has been made in the best interests of the children.

24. I find for the applicants and make the following orders;a.An order be and is hereby made authorizing the applicant CWW to baby FWWb.That JNR be and is hereby appointed the legal guardian.c.That JNN, the guardian ad litem, be and is hereby discharged.d.That the Registrar General be and is hereby directed to make appropriate entries of this adoption into the register of adoptions and issue a certificate to that effect.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 9TH DAY OF JUNE, 2022. Mumbua T MathekaJudgeCA EdnaNjeri Njagua & Co Advocatesbeatricenjagua@yahoo.com