[2022] KEHC 15902 (KLR)

In re JL aka LC (Baby) (Adoption Cause EO26 of 2022) [2022] KEHC 15902 (KLR) (Family) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15902 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause EO26 of 2022

MA Odero, J

November 4, 2022

IN THE MATTER OF THE CHILDREN ACT IN THE MATTER OF AN APPLICATION FOR AN ADOPTION ORDER IN RESPECT OF BABY JL AKA LC BY

In the matter of

CNN

Applicant

Judgment

1. Before this court is the exparte originating summons dated February 22, 2022 by which the applicant seeks the following orders:-1. That the applicant, CNN, be allowed to adopt the child currently identified as Baby JL aka LC.2. That henceforth, the child be renamed GBW.3. That the child’s date and place of birth be declared to be December 10, 2018 at Nakuru county.4. That the child be presumed to be a Kenyan citizen by birth, and consequently, entitled to all the rights and benefits in respect thereof.5. That consent of the child’s biological parents/guardians be dispensed with.6. That JWN appointed as legal guardian of the child, in the event that the applicant herein is incapacitated or in any way unable to discharge her parental obligations.7. That the guardian ad litem be discharged.8. That the Registrar General be directed to make the appropriate entries in the adopted children’s register.9. That this court do issue such further orders as are in the interest of justice.”

2. The application is supported by the statement of even date sworn by the applicant. The matter was heard by way of viva voce evidence on the virtual platform.

3. The applicant CNN told the court that she was a single woman who had never been married and had no biological child of her own. The applicant stated that she wished to adopt the subject child a girl child aged two and a half (2 ½) years old in order to fulfil her lifelong desire to have a child of her own.

4. The applicant confirmed that she understood the legal implications of an adoption order. She undertook to accord to the subject child all the rights due to a biological child including the right to inherit. The applicant stated that her family members fully supported her intention to adopt.

Analysis And Determination 5. I have considered this application, the reports filed in court as well as all the evidence adduced in support thereto. The prerequisites for adoption are set out in section 184 (1) of the Children Act 2022 which provides –“184(1) A person shall not commence any arrangements for the adoption of a child unless –a.the counsel in accordance with the rules has declared the child free for adoption.b.the child has attained the age of six weeks.”

6. The subject child is believed to have been born on December 10, 2019. The child is therefore now aged approximately two and a half (2½) years old and is above the six (6) week age limit provided for by law.

7. Buckner Kenya Adoption Serviceswhich is a registered adoption agency have annexed to their report filed on April 26, 2022, a certificate serial number xxx dated February 5, 2021 declaring the child free for adoption. Accordingly, I am 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. She has annexed to the summons a copy of her national identify card (annexture ‘CN4’).

9. The applicant told the court that she is a 48 year old single woman. That she has never been married and due to medical complications has been unable to bear a child of her own. The applicant now seeks to adopt the child is order be complete her family.

10. The applicant is a christian and intends to raise the child in the christian faith. Annexed to the summons is a letter of recommendation (annexture ‘CN 5’) dated November 11, 2020 which letter is authored by Rev BM, the Parish Minister of the [particulars witheld] parish where the applicant is a congregant. The applicant has also annexed a copy of a clearance certificate issued to her by the Director Criminal Investigations proving that she has no criminal record (annexture CN ‘9’).

11. The applicant earns a living from farming activities and from selling clothes as well as running an agro-vet business. She earns approximately Kshs 50,000 per month which is sufficient to enable her provide for the needs of the child.

12. The applicant has annexed copies of her bank statements in respect of an account held with Equity Bank as well as her m-pesa statements (annextrures ‘CN 7A & 8B’). These financial records indicate that the application is financially secure.

13. The applicant was examined by a doctor and was found to be mentally and physically fit. The medical report is annexture ‘CN8’. She states that her family support her intention to adopt the child. The applicant has annexed letters of support written by her sister KN and a close friend SSO (annextures ‘CN 11A and 11B’).

14. Based on the evidence availed I am satisfied that the applicant is a suitable adoptive parent.

15. The subject child is believed to have been born on December 10, 2019. The child was found abandoned aged five (5) weeks old near Patrick Memorial Orphanage in Nakuru county on January 20, 2020. The baby had scars on the right side of her body. A handwritten note was found next to the baby. The note indicated that her ‘name was ‘LCW that she had not been immunized and pleaded that the child be taken care of. A copy of this handwritten note appears at page 67 of the summons.

16. A good samaritan rescued the baby and reported the abandonment at Pemways Police Patrol Base vide OB number 6 of January 20, 2020. The baby was then taken to a childrens home to be looked after. Thereafter on February 24, 2020 the Nakuru Children Court committed the child to New Life Home Trust for care and protection. On March 18, 2021 the child was placed into the custody of the applicant under a foster care agreement.

17. Article 14 of the Constitution of Kenya 2010 deals with issue of citizenship. Article 14(4) provides as follows:-“(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 five (5) weeks in Nakuru county within the Republic of Kenya. I therefore declare the child to be a citizen of Kenya by birth.

19. The person who abandoned the child has never been traced. Police efforts to trace the biological mother/relatives of the child have borne no fruit. To date no person has come forward to claim the child. A final police letter dated October 24, 2020 from the OCS Penways Police Patrol Base is annexture CN’25’ to the summons.

20. Given the facts of her abandonment there exists no known person from whom consent for this adoption can be sought and/or obtained. I therefore waive the requirement for consent in line with section 187(1) of the Children Act 2022.

21. Section 8(1) of the Children Act 2022 provides as follows:-“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;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the first schedule.”(own emphasis)

22. The child herein was abandoned a few weeks after her birth. She faced an uncertain future living in various childrens home. This adoption provides the child with the opportunity to be raised in a loving and stable home environment.

23. The child has resided with the applicant in her home since March 2021. Undoubtedly, the child has bonded with the applicant whom she views as her mother.

24. I was able to see the child online. She was a happy, healthy, bubbly toddler and was obviously comfortable playing next to her mother.

25. A home visit was conducted by the childrens department. The applicant lives in her own home in [particulars witheld] village in Gitaru, Kiambu county. The home is a three bed-roomed bungalow with all necessary amenities. It is a rural setting and the applicant’s brothers family lives in the same compound, thus there are other children for the child to play with. The home was found to be a conducive environment for raising a child.

26. The applicant has appointed her younger sister JWN as the legal guardian for the child. The said legal guardian has signed an affidavit of consent dated December 22, 2021 indicating her willingness to act as legal guardian for the child (annexture ‘CN 12A’).

27. I have perused the reports prepared by the adoption agency, the guardian ad litem and the directorate of childrens services. All three reports were positive and all recommended the adoption.

28. I am satisfied that this adoption serves the best interests of the child. Accordingly, I do allow this application and make the following orders:-1. The applicant CNN is authorized to adopt the child known as Baby JL aka LC.2. Upon adoption the child shall be known as GBW.3. The child is declared to be Kenyan citizen by birth and is entitled to all the rights and benefits in respect thereof.4. The Registrar General is directed to make the relevant entry in the adopted children’s register.5. JWN is be hereby appointed as legal guardian of the child.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE