[2018] KEHC 5022 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ADOPTION CAUSE NO. 126 OF 2017 (O.S)

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

IN THE MATTER OF ADOPTION OF BABY IFE

BY

COO AND MAO (APPLICANTS)

JUDGMENT

1. The Applicants COO and MAO are in a monogamous marriage which after cohabiting for 21 years, was solemnized through a civil marriage held on 16th December, 2015. They have four biological children namely:

a. JA born on 30th March, 1996

b. KO born on 29th July, 1997

c. EA born on 27th December, 2001

d. BO born on 21st February, 2008

2. They wish to adopt the child known as Baby F E, through the Originating Summons dated 31st July, 2017. From the pleadings the court gathers that COO is a chef at [particulars withheld], while MAO is a co-director at [particulars withheld]. They reside in Ruiru and both profess the Christian faith.

3. Records indicate that the minor in this matter was born on 4th May, 2013 from an unfortunate incident of gang rape in Machakos where the rape victim’s (biological mother) father was killed. The biological mother opted to carry the pregnancy to term and later give up the child for adoption. She gave up the baby to Good Samaritan Children’s Home through the help of her close friend whom she had requested to put her in contact with an organization, or someone who could adopt the baby after delivery.

4. On 28th April, 2013 the biological mother signed an agreement stating that she would not claim the baby. On 26th June, 2015 she wrote another letter of consent allowing the baby be admitted at Cindi’s Hope Children’s Home. The child was committed to the home by the Nairobi Children’s court vide P&C Case No. 146/2015.

5. Prior to the hearing of the adoption application, Change Trust Adoption Society prepared and filed a report in court. They also issued a certificate No. [Particulars Withheld] dated 8th December, 2016 declaring the child free for adoption. The guardian ad litem M M filed a report dated 20th February, 2018 which was favourable and recommended the adoption of the child by the Applicants.

6. An officer in the office of The Director of Children Services made home visits and established that the Applicants are financially and emotionally capable of providing for the up keep and education of the child. She filed a report dated 5th March, 2018 recommending the adoption for reasons that the child stands to gain from the opportunities provided by becoming the daughter of the Applicants as opposed to living all her life in an institution as an abandoned child.

7. The child was in court during the hearing and appeared to have bonded well with the Applicants. She was calm and clearly seemed to trust the Applicants. She regarded them as her parents. The Applicants’ family members are said to be aware of the proposed adoption and support it.

8. It is important to note that, the orders sought by the Applicants relate to a child. In any matter concerning a child the best interests of a child are what is of paramount importance as provided for under Article 53(2) of theConstitution and section 4(3)of the Children Act No. 8of2001.

9. I note that this is a local adoption and the Applicants, in my opinion 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. Secondly, the Applicants meet the social 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, I allow the prayers sought in the Originating Summons dated 31st July, 2017 and order as follows:

i. The Applicants, COO and MAO are hereby allowed to adopt Baby IFE who shall henceforth be known as EJAO.

ii. Her date of birth shall be presumed to be 4th May, 2013. She is presumed to have been born in Kenya in accordance with Article 14(1)of theConstitution,and the place of birth shall be Machakos.

iii. G W K, is hereby appointed legal guardian 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 DATED and DELIVERED in open court this 26th day of July 2018

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

L.A ACHODE

JUDGE