[2017] KEHC 2410 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 131 OF 2016 (OS)

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001

IN THE MATTER OF ADOPTION OF BABY GJ

BY

CM AND WK (APPLICANTS)

JUDGMENT

1. The Applicants CK and WWK are in a monogamous marriage which was solemnized at the Registrar’s office, Nairobi on 14th October, 2015 vide certificate No. [Particulars Withheld]. They have one child of their own, RMM born on 20th September, 2012. They wish to adopt the child known as Baby GJ a minor of male sex, through the Originating Summons dated 30th September, 2016. From the pleadings the court gathers that CM is a self-employed Civil Engineer, while WWK is an Administrator with the [Particulars Withheld] Embassy. They reside in Nairobi and are both Christians.

2. Records indicate that the child in this matter was abandoned by his mother immediately after delivery, at the Nyahururu Hospital on 27th February 2015. The child was born pre-term at 26 weeks with severe birth asphyxia and was placed in the incubator. The child developed jaundice and was put on phototherapy for 9 days. The matter was booked at the Nyahururu Police Station vide OB No. [Particulars Withheld]. The child was later referred to Nyahururu District Hospital by the Children Department. The child was then referred to New Life Home Trust for care and protection the same day.

3. On 31st March 2015 the child was officially committed to the same home by the Senior Resident Magistrate Children’s court, Nyahururu vide Protection and Care Case No. 46 of 2015

4. A letter dated 3rd November, 2015 by Nyahururu Police Station confirmed that the biological parents of the child were not traced, nor did anyone come forward to claim the child. The child was declared free for adoption on 14th November, 2015 by the Change Trust Adoption Society vide certificate No. [particulars withheld]. He was released into the custody of the Applicants for mandatory foster care pending adoption on 14th December 2015, upon their signing a Foster Care Agreement dated the same day. Since then he has been in the continuous custody and care of the Applicants.

5. Prior to the hearing of the adoption application, Change Trust Adoption Society prepared and filed a report in court. The Adoption Society, guardian ad litem and the Director of Children’s Services have all made home visits and established that the Applicants are financially and emotionally capable of providing for the up keep and education of the child.

6. The Director of Children’s Services also filed a report dated 18th September, 2017 recommending the adoption for reasons that the child stands to gain the an alternative family. Further that he has flourished under the care of the prospective adoptive parents with whom he has bonded. The guardian ad litem, Mr. SOO also filed a report that was favourable and recommended the adoption of the child by the Applicants.

7. It is important to note that, the orders sought by the Applicants relate to a child. In law, in any matter concerning a child, the best interests of a child are paramount. Article 53(2)of theConstitution provides the guiding principle on this question as follows:

“A child’s best interests are of paramount importance in every matter concerning the child.”

The other pertinent law is the Children Act No. 8of 2001 and in particular Section 4(3) thereof.

8. The court observes that this is a local adoption and the Applicants, in the opinion of the court have fulfilled the requirements for local adoption under the Children Act, 2001. They have proved during the placement period prior to adoption that they are capable of taking on the challenge of raising the child in this matter. The child was in court during the hearing and appeared to have bonded well with the Applicants and his sibling. The child was jovial and was observed to be in good health and in good spirits and had flourished under the care of the Applicants.

9. Secondly, the Applicants meet the social and financial parameters that are considered relevant to their taking on parental responsibility and custody of the child in this matter, on a permanent basis as would be conferred by the adoption order sought.

10. From the foregoing, this court has formed the opinion that it is in the best interest of the child to be adopted by the Applicants. Reasons wherefore, the court allows the prayers sought in the Originating Summons dated 30th September, 2016 and order as follows:

i. The Applicants, CM and WWK are hereby allowed to adopt Baby GFwho shall henceforth be known as GNM.

ii. His date of birth shall be presumed to be 26th February, 2015. He is presumed to have been born in Kenya in accordance with Article 14 (3)of theConstitution, and the place of birth shall be Nyahururu.

iii. Mr. SNK and Mrs. JWK are hereby appointed as the legal guardians of the child in the event that the Applicants die or are incapacitated by ill-health.

iv. The Registrar General is directed to enter this order in the Adoption Register.

v. The Director of Immigration is hereby authorised to issue the child with a Kenyan passport.

vi. The guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 3rd day ofNovember, 2017.

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L. A. ACHODE

JUDGE