[2023] KEHC 25293 (KLR)

In re HS (Child) (Adoption Cause E113 of 2022) [2023] KEHC 25293 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25293 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E113 of 2022

MA Odero, J

November 10, 2023

In the matter of

MMM

Applicant

Judgment

1. Before this court is originating summons dated June 27, 2022 by which the Applicant seeks the following orders: -“1. Thatthe Applicant be authorized to adopt the child; Abandoned Unkown Child aka Baby HS who is presumed to be a Kenyan citizen, born on the 19th of October 2017.

2. That upon adoption the child be known as SMN.

3. That EWK of Kenyan National Identity Card Number XXXX be appointed as the legal guardian of the child.

4. That the Registrar General be directed to enter this Adoption in to the Register of adoptions and a subsequent Birth Certificate do issue by the Registrar of Births and Deaths.

5. That the Director Immigration be directed to issue the child; with a Kenyan Passport.”

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 MMM is a sole applicant who has no biological child. She wishes to expand her family by adopting the Subject child. The Applicant confirms that she understands and accepts the legal implications of an adoption order. She undertakes to accord the Subject child all the rights due to a biological child including the right to inherit.

Analysis and Determination 4. I have considered the application for adoption, the evidence adduced in support thereof as well as the various reports filed in court.

5. The prerequisites for before an adoption order can be made are set out in section 184 (1) (a) and (b) of the Children’s Act 2022: -“(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.”

6. The Subject child was born on 19th October 2017. The child is now approximately aged five (5) years old. She is above the six (6) week age limit provided for in law.

7. Child Welfare Society of Kenya,which is a registered Adoption Agency have annexed to their report a copy of their Certificate Serial Number XXXX dated 28th November 2019 declaring the child Free for Adoption. I am therefore satisfied that all the legal prerequisites for an adoption order have been met.

8. The duty of this court is to analyze the evidence on record to determine whether the Applicant is a suitable adoptive parent. The Applicant is a Kenyan citizen as evidenced by the Annexed copy of her National Identity Card.

9. The Applicant got married to one JNM in 2007 under Kamba Customary Law. Their union has not been blessed with any child. The Applicant now seeks to adopt the subject child in order to have a child to call her own.

10. Section 186 (b) of the Children Act 2022 provides 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)on the application of one of the spouses, the consent of the other spouse; and(c)….;” [own emphasis]

11. The Applicant’s husband Joseph Nzioki Makaa has given his consent to this adoption through the written consent dated 13th February 2018.

12. The Applicant is gainfully employed. She works as a Civil Servant in the Ministry of Labour. She has annexed to the summons a copies of her pay slip. I find that the Applicant has sufficient means to provide for the child.

13. The Applicant is a Christian and intends to raise the child in the Christian faith. She was examined by a doctor and was found to be mentally and physically fit. The Applicant has annexed to the summons a copy of Clearance Certificate issued by the Directorate of Criminal Investigations confirming that she has no criminal record.

14. The Applicants told the court that her family is aware of and supports her intention to adopt the Subject child. She has appointed her sister as the legal Guardian for the child. The proposed legal guardian EWK has signed a consent dated 27th June 2022 confirming her willingness to act as the legal Guardian for the child in the event of the death and/or incapacity of the Applicant.

15. Based on the material presented before this court I am satisfied that the Applicants are suitable adoptive parents.

16. The Subject child who was born on 19th October 2017 was found abandoned aged barely one (1) day old on 20th October 2017 in an empty house within Karambee area, Mlango Kubwa of Nairobi County. A good Samaritan rescued the child and reported the abandonment at Pangani Police Station vide OB Number 61 of 20th October 2017. The child was committed by the Nairobi Childrens Court to CWSK Mama Ngina Kenyatta Children’s Home as a child in need of care and Protection. On 24th December 2019 the child was released into the custody of the Applicant under a Foster Care Agreement.

17. Article 14 (4) of the Constitution of Kenya 2010 provides that: -“(4)A child found in Kenya who is, or appears to be less than eight years of age and whose nationality and parents are not known, is presumed to be a citizen by Birth.”

18. The Subject child was found abandoned at the age of one (1) day within Nairobi County in the Republic of Kenya. Efforts by police to trace the biological mother and/or relatives of the child have borne no fruit. To date no person has come forward to claim the child. Final police letters dated 19th August 2019 and 30th August 2019 confirms this fact. I therefore declare the child to be a citizen of Kenya by birth.

19. Given the fact of her abandonment there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances, I do waive the requirement for consent in line with section 187(1) (a) Children Act2022.

20. In deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. Section 8 (1) of the Children Act2022 provides: -“(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;” [own emphasis]

21. This is a child who was abandoned shortly after her birth. She faced an uncertain future living in children Homes and other similar institutions. This adoption provides the child with the opportunity to be raised in a stable and loving home environment.

22. The child has been living with the Applicant in her home for close to four (4) years. She has undoubtedly bonded with the Applicant whom she views as her mother. The child knows no other family. I was able to see the child online. She told the court that her name is ‘Sarah’ and that she is five (5) years old. That she attends Testimony International School and her teacher is called ‘Cecilia’.

23. A Home visit was conducted by the Childrens Officer. The applicant resides in her own 3 bedroomed house in Nyayo Estate in Embakasi. The house is jointly owned with her spouse. The home is well furnished providing a good environment to bring up the child. The Childrens Officer noted that the child has bonded very well with the Applicant.

24. I have considered the reports prepared by the Adoption Agency, the Guardian Ad Litem and the Director of Children Services. All three reports were positive and all recommend the adoption.

25. In conclusion, I find that this adoption does serve the best interests of the child. Accordingly, I do allow this application and make the following orders:-1The Applicant is authorized to adopt the child known as; Abandoned Unkown Childaka Baby HS.2Upon Adoption the child shall be known as SMN and the date of birth be 19th of October 2017. 3The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and privileges pursuant thereto.4EWK is appointed as the Legal Guardian of the child.5)The Registrar General is directed to make relevant entry in the Adopted Children Register.

DATED IN NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ...................................MAUREEN A. ODEROJUDGE