[2023] KEHC 20056 (KLR)

In re JD (Child) (Adoption Cause E238 of 2022) [2023] KEHC 20056 (KLR) (Family) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 20056 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E238 of 2022

PM Nyaundi, J

June 22, 2023

IN THE MATTER OF ADOPTION OF BABY JD.............THE CHILD

In the matter of

IAO

1st Applicant

PMA

2nd Applicant

Judgment

1. The Applicants, IAO and PMA vide Originating Summons dated November 30, 2022 have made an application for the adoption of BABY JD the child herein. The applicants have been married since 2013 and have attached a copy of the marriage certificate serial number XXXX.

2. They wish to adopt the baby with the intention to demonstrate God’s love to mankind by providing a home, love and care to needy child in the community. In addition, they want to expand their family since they are unable to get more children due to medical reasons. The 2nd Applicant also said adoption was something she always wanted to do since her youth and they have been influence by relatives who have adopted children.

3. The matter proceeded for hearing viaviva voce evidence on the Teams virtual platform on the 15th of June 2023.

4. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The 1st applicant is a research officer and 2nd applicant is a Human resource manager, they have had custody of the child since April 25, 2022. They reside in Magiwa Estate Ngumo. They fully understand the consequences of an adoption order.

5. The child was found abandoned at Lunga Lunga Centre, by the mother on May 15, 2021. The child was found by Lucy Njura of Id/No 10059xxxx and mobile number 072573XXXXX. She reported the matter at Lunga Lunga Police Station two days after abandonment where it was recorded vide OB/No XXXX/2021.

6. The child was placed under the care and protection of New Life trust home on May 18, 2021 through Makadara Sub-County Children’s Office.

7. On 26 May, 2021 the baby was committed to New Life Home trust, for a period of three years in the Children’s court at Nairobi vide Protection and Care Case No XXX of 2021. The final police letter dated March 9, 2022, stated that since the child was abandoned no one has claimed her custody.

8. Prior to the hearing of the adoption application, Change Trust prepared and filed a report dated May 21, 2021 and issued a certificate serial No XXXX declaring the child free for adoption. On January 20, 2023 the Court appointed a Guardian Ad litem LK.

9. The Guardian Ad Litem, LK was present in Court and presented her report dated March 13, 2023. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She recommends that the Applicants be allowed to adopt the Child.

10. An officer of the Department of Children Services, Mary Atati prepared a report dated March 16, 2023. The report established that the child was abandoned at Lunga Lunga Centre and was found by LN who reported the matter to Lunga Lunga police station under OB NUMBER XXXX/2021.

11. The Report further documents that vide letter dated March 9, 2022; the Police confirmed that neither the mother nor other relatives of the child had come back to claim the child. For this reason, the Department of Children Services confirms the child is free for adoption. The Child was placed with the Applicant on April 24, 2022.

12. The proposed Legal Guardians LNR and MCWM attended court and confirmed they is willing to take up the role of legal guardian.

13. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.1) The Court may make an adoption order on application by—A. A sole applicant; orB. Two persons jointly

(2) The Court shall not make an adoption order in any case unless—a) the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and(b) The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.

a) the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and(b) The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child. 3) The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

14. The Applicants are aged 37 years and 36 years respectively.

15. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child

16. This principle is restated Under Section 8 of the Children Act, 2022 which provides

Best interests of the child.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;

(b) The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.

(a) the best interests of the child shall be the primary consideration;

(b) The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. Section 194 (1) (c) of the Act also requires that if the adoption order is made the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;17. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated November 30, 2022 and order as follows:i. The Applicants IAO and PMA be allowed to adopt Baby JDii. The Child to be known as GAiii. The Child be presumed to be a Kenyan citizen by birth.iv. LNR and MCWM are hereby appointed as legal guardians of the Childv. The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.vi. The Director of Immigration authorised to issue the child with a Kenyan passportvii. The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 22NDDAY OF JUNE, 2023. M NYAUNDIHIGH COURT JUDGEIn the presence of …………………………………………………………..