[2018] KEHC 2782 (KLR)
The court found that the minor was abandoned and found within Kenya, and thus, under Kenyan law, should be presumed a Kenyan citizen. The omission of a citizenship prayer in the original adoption application did not preclude the court from granting such an order post-adoption, especially where it is necessary to...
Source-derived case information.
- Citation
- [2018] KEHC 2782 (KLR)
- Parties
- Applicant: R K O; Applicant: C W O
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 10 of 2009
- Procedural Posture
- Adoption Cause / Ruling on Post Adoption Application
- Outcome
- application allowed
- Judges
- AG Ndung'u
- Legal Topics
- Adoption Orders, Citizenship of Minors, Presumption of Citizenship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R K O
Applicant
C W O
Applicant
Procedural Posture
Adoption Cause / Ruling on Post Adoption Application
Legal Issues
- 1 Whether the minor, having been abandoned and found in Kenya, should be presumed a Kenyan citizen.
- 2 Whether the omission of a citizenship prayer in the original adoption application precludes the court from granting such an order now.
- 3 Whether granting the presumption of citizenship is necessary to give full effect to the adoption order and facilitate the minor's rights.
Ratio Decidendi
The court found that the minor was abandoned and found within Kenya, and thus, under Kenyan law, should be presumed a Kenyan citizen. The omission of a citizenship prayer in the original adoption application did not preclude the court from granting such an order post-adoption, especially where it is necessary to give full effect to the adoption and to secure the minor's rights and identity. The court exercised its jurisdiction to ensure the minor's best interests, including the facilitation of travel and access to a passport, by granting the presumption of citizenship.
Court Disposition
application allowed
Orders
- R Z O is presumed a Kenyan citizen.
- The costs of this application be in the cause.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
ADOPTION CAUSE NUMBER 10 OF 2009
IN THE MATTER OF H W alias R Z O...............................MINOR
AND
R K O........................................................................1ST APPLICANT
C W O......................................................................2ND APPLICANT
RULING
1. The application before court is dated 17/9/2018. Orders sought are;
(a) Spent
(b) THAT the minor herein be presumed as a Kenyan citizen.
(c) THAT costs of this application be in the cause.
2. The application is based on grounds;
i) THAT the prayer for the presumption as a Kenyan citizen was not included in the Adoption Application dated 9th November, 2009.
ii) THAT the Adoption was concluded and a birth certificate together with the Adoption certificate issued to the Applicants.
iii) THAT the minor herein needs to travel out of the country for a school trip and the same has been frustrated.
iv) THAT the said minor needs a passport and the same has been denied.
v) THAT the Immigration Department has declined to clear the said minor for travelling.
3. It is further supported by the sworn affidavit of R K O and C W O.
4. The gist of the application is that when adoption orders were sought in respect of H W alias R Z O, a prayer that the said subject be presumed a Kenyan citizen was not included in the adoption application dated 9/11/2009.
5. It is urged that the adoption was concluded and a birth certificate together with an adoption certificate issued. Both are annexed.
6. It is indicated that the minor needs to travel out of the country for a school trip and for that purpose needs a passport. The department of immigration has declined to clear the said minor for travelling.
7. I have considered the application, the supporting affidavit and grounds in support.
8. I have confirmed from the record that the minor R Z O was adopted by R K O and C W O vide orders of court of 7th May 2010.
9. Subsequently, a birth certificate and a certificate of entry in the adopted children register was issued.
10. A perusal of the originating summons presented to court and dated 9th November, 2009 shows that the prayer that the child be declared a Kenyan citizen was not included.
11. The record of court shows that the minor herein was abandoned on 24/9/2007 and taken to Pangani Police Station.
12. Having been found in Kenya, the child should be presumed to be a Kenyan citizen.
13. Consequently, the prayers sought are meritable to give full effect to the adoption order and to give the minor a nationality which gives the minor, not only an identity, but also facilitates her movement around the world as circumstances may require.
14. I allow the application dated 17/9/2018 and make the following orders;
1. R Z O be presumed a Kenyan citizen.
2. The costs of this application be in the cause.
Dated and Delivered at Nakuru this 2nd day of October, 2018.
A. K. NDUNG'U
JUDGE