[2013] KEHC 1578 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ADOPTION CAUSE NO. 4 OF 2012

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

AND

IN THE MATTER OF: AN APPLICATION BY I D O AND A S O FOR AN ORDER OF ADOPTION

AND

IN THE MATTER OF: ADOPTION OF J M ALIAS BABY K (THE INFANT)

AND

I D O alias I O O……………………....……….………………..1ST APPLICANT

A S O ………………………………………..…………………..2ND APPLICANT

JUDGMENT

The two applicants namely I D O alias I O O (hereinafter referred to as the 1st applicant) and A S O (hereinafter referred to as the 2nd Applicant) have jointly filed in court this originating summons seeking the following orders:

“(a) THAT the applicants be authorized to adopt

J M aliasBABY K, the said child to be known as B J O after adoption.

(b) THAT the Registrar General be directed to make in the adopted Children’s Register, an entry to the effect that B J O is so adopted as per the particulars of the adopted child.”

The application was heard by way of vive voce evidence on 21st May, 2012 the court did approve J M N as Guardian ad litem in the matter. On 17th September, 2013 both applicants testified before me. The 1st and 2nd applicants are a couple who got married in the United States of America on 1st June, 2007. They contracted a civil marriage under the American Civil Law. After their union the 1st applicant who is a citizen of Kenya and the 2nd applicant who is an American citizen travelled back to Kenya and set up their matrimonial home in Diani in the Coast area. The applicants told the court that due to medical complications, they have not been able to bear a child naturally together. They therefore adopted a female child A G A O now aged 7 years. In the desire to expand their family the applicants now seek to adopt the male child known as ‘J M’.

The child who is the subject matter of this adoption application is a boy-child born in November, 2010. He was abandoned at birth by his birth-mother and was retrieved from a public pit latrine at Muthua slum area within Karatina Township. After his rescue the child was committed by the Children’s Court in Karatina to the New Life Home Trust in Nyeri. That is where the applicants met him.

The law regarding the Adoption of children in Kenya is contained in the Children Act, 2001. Section 156(1) of the said Act provides as follows:

“156(1) No arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with the rules prescribed in that behalf.”

In this case the subject child is about 3 years old thus is well above the six week age limit prescribed by section 156(1). Annexed to the application is a certificate serial No. [Particulars withheld] declaring the child free for adoption issued by the Little Angels Network which is a registered adoption agency. I am therefore satisfied that all the prerequisites for adoption have been met.

I have carefully perused the report filed by the Adoption Agency as well as the Home Report filed by the Children’s Department. The adoption agency having interviewed both applicants found them suitable to adopt the child. There is evidence that the applicants have a stable Christian home and live in a residence that is suitable to raise a growing child. As mentioned earlier they already have one adopted daughter thus they are not strangers to child rearing. The 1st applicant is in paid employment and his annexed copies of his bank statement are clear proof that he has sufficient financial means to provide for a young family. The 2nd applicant is a stay at home mother which is advantageous to children of tender years as this means that she will be intimately involved in all aspects of their lives. None of the reports filed in court raised any red flag and I have no doubt that the applicants have a genuine desire to receive the subject child into their family as one of their own.

As mentioned earlier the child was abandoned by his birth mother. The matter was reported to police but to date no person has come forward to claim him. In the Final Report dated 23rd May, 2011 from Karatina police station it was indicated that all efforts to trace the biological mother of the child have yielded no results. There being no person from whom consent for this adoption can legally be sought, this court dispenses with such consent under the terms of section 159(1)(a) of the Children Act.

Finally, in any matter concerning a child section 4(a) of the Children Act obliges a court to give priority to the ‘best interest’ of the child. This child having been abandoned faced an uncertain future in children’s homes or in foster homes. The applicants are offering him a chance to be raised like all other children in a home environment with loving parents. This in my view certainly serves the best interest of the child. Based on the foregoing I am satisfied that this application has merit and it is hereby allowed. This court authorizes the adoption by the applicants of the child J M alias B K. The said child shall henceforth be known as B J O. I further direct that the Registrar General make the relevant entry in the adopted children’s register.

Dated and delivered in Mombasa this 1st day of November, 2013.

M. ODERO

JUDGE

In the presence of:

Mr. Mulwa h/b Ms. Ngugi

Court Clerk Mutisya