[2017] KEHC 2412 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 144 OF 2016 (OS)

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

IN THE MATTER OF ADOPTION OF BABY GW

BY

BKM VS LMK (APPLICANTS)

JUDGMENT

1. The Applicants BKM and LMK were married under Kikamba customary in since 2012. They later solemnized their union on 10th March, 2016 at the Registrar’s Office Nairobi, and were issued with certificate No. [particulars withheld]. They have no child of their own. They wish to adopt the child known as Baby GW a minor of male sex, through the Originating Summons dated 16th November, 2016. From the pleadings the court gathers that BKM is a Medical Representative at the [particulars withheld] Ltd while LMK is an Administrator at [particulars withheld] Hospital. They reside in Kamulu and are both profess the Christians faith.

2. Records indicate that the minor in this matter was reportedly abandoned at the New-born Unit, Kenyatta National Hospital immediately after birth by his mother, who had given her name as CN, on 31st October 2015. The matter was reported at the Kenyatta Police Post on 4th December 2015 and was booked via OB No. [particulars withheld].

3. The child was referred to New Life Home Trust for care and protection on 7th December 2015. On 10th February, 2016 the child was officially committed to the same home by the Senior Resident Magistrate Children’s court, Nairobi vide Protection and Care Case No. 6 of 2016. A letter dated 10th June, 2016 by Kenyatta Police Post confirmed that the biological parents of the child were not traced, nor did anyone come forward to claim the child.

4. The child was declared free for adoption on 8th July, 2016 by Buckner Kenya Adoption vide certificate No. [particulars withheld]. He was released into the custody of the Applicants for mandatory foster care pending adoption on 28th July, 2016, 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, Buckner Kenya Adoption Services, an 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 24th July, 2017 recommending the adoption for reasons that the child stands to gain parents. Further that he has flourished under the care of the prospective adoptive parents with whom he has bonded. The guardian ad litem, M/s. L P.M also filed a report that was favourable and recommended the adoption of the child by the Applicants.

7. The child was in court during the hearing and appeared to have bonded well with the Applicants. He was jovial and related well with the Applicants. The court also notes that both Applicants’ families support the adoption.

8. Be that as it may 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.

9. 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 observed to be in good health and in good spirits and had flourished under the care of the Applicants.

10. 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.

11. 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 16th November, 2016 and order as follows:

i. The Applicants, BKM and LMK are hereby allowed to adopt Baby GW who shall henceforth be known as GMK.

ii. His date of birth shall be presumed to be 31st October, 2015. He is presumed to have been born in Nairobi, Kenya in accordance with Article 14 (3)of theConstitution, and the place of birth shall be Nairobi.

iii. FN and JM (1st Applicant’s sister and brother-in-law) are hereby appointed 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 of November, 2017.

........................

L. A. ACHODE

JUDGE