[2017] KEHC 2961 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ADOPTION CAUSE NO. 2 OF 2017

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION BY J O

IN THE MATTER OF ADOPTION OF JMM (A CHILD)

BETWEEN

JO………………………………………………. APPLICANT

VMM. ………………………....……….………RESPONDENT

RULING

Background

1. JMO (hereinafter “the deceased”) had a son JMM (name withheld) hereinafter referred to as the minor with the respondent herein VMM. The exact age of the minor has not been disclosed in the application that is the subject matter of this ruling. However, from the minutes of a meeting held on 12th June 2016 between the deceased’s and respondent’s respective families, which was annexed to the application and marked J03, the minor is reported to 7 years old.

2. Through a consent order made in Kakamega CM Children’s case No. 67 of 2017 (copy marked as “JO2”) on 5th September 2016, it was agreed that legal and actual custody of the minor be granted to the deceased and that the respondent be allowed access to the minor with prior arrangements with the father.

3. Quite unfortunately, the deceased died soon thereafter on 6th November, 2016 (See copy of death certificate marked “J01”) and following his death, the respondent on 4th April, 2017 sought and obtained an order in the said Kakamega CM Children’s case No. 67 of 2016 (hereinafter “children’s court”) as follows:

1. THAT the custody order made on 1st September, 2016 granting the Legal and Actual custody of the “minor” JMO to the father, JOM is hereby revoked.

2. THAT the Applicant, VMM, who is the mother be and is hereby granted Legal and Actual custody of the “minor” JMO.

3. THAT all necessary assistance be accorded to the Applicant by the Children’s Office and the Security Personnel in her endeavour to reclaim the custody of the “minor” JMO, who is the subject matter in this application.

4. A copy of the said order was attached to the applicant’s affidavit and marked “JO4”.

5. Upon receiving the said court order granting her custody of the minor, the respondent herein proceeded to take over the custody of the minor from the applicant thereby precipitating the application that is the subject of this ruling.

Application

6. In her Notice of Motion application dated 15th May 2017, expressed to have been filed under Section 159, 160 and 161 of the Childen Act and rules 4, 12 and 13 (1) of the Adoption of Children Practice and Procedure Rules 2002, the applicant seeks the following orders:

1. The applicant herein, JO be and is hereby appointed as guardian ad litem to the child herein, JMM.

2. Custody of the minor herein JMM be given to the applicant herein JO.

3. The respondent be directed to avail the minor herein in court at the inter-parties hearing of the instant application.

4. Necessary assistance be accorded to the applicant by the Children’s office and the security personnel in whose jurisdiction the minor is suspected to be hidden in an endevour to reclaim custody of the minor JMM and return the child to [particulars withheld] Elementary School.

7. The application is supported by the applicant’s affidavit sworn on 15th May 2017 wherein she avers that the deceased was her son who had prior to his death been in actual and legal custody of the minor by virtue of a consent order recorded in the children’s court. She further states that the respondent has purported to set aside the said custody order without the involvement of the other party and on 4th April 2017 forcefully took the minor from the applicant’s custody.

8. She contends that the order of the children’s court issued on 4th April 2017, revoking the consent order of 1st September 2016 and granting custody to the respondent was irregular and erroneous as the said orders were granted without the participation of the parties representing the estate of the deceased.

9. The respondent did not file any response to the application despite proper service and when the matter came up for hearing, Mr. Begi, learned counsel for the applicant submitted that the application stood unopposed and prayed that the same be allowed.

Analysis and determination

10. I have carefully considered the application herein, the supporting affidavit and the annextures. The main issues that stands out for determination is whether the applicant has complied with the procedure for adoption of a child as envisaged in the Children Act No. 8 of 2001 and whether the applicant entitled to the orders sought.

11. On the issue of the Procedure for adoption, the applicant has from the very outset of the application herein expressed it to be an application for adoption under Section 159, 160 and 161 of the Children Act and Rule 4, 12 and 13 (1) of the Adoption of Children Practice and procedure rules 2002.

12. Section 159 of the Children Act provides for the circumstances under which the court may dispense with consent of a spouse for an adoption while Section 160 provides for the appointment of guardian ad litem pending the hearing and determination of an adoption application. Section 161 on the other hand provides for the interim orders that the court may make pending an adoption order.

13. In the instant case, the applicant referred specifically to the provisions of section 159 (1) (a) and 159 (4) in his application which stipulate as follows:

“159. (1) The court may dispense with any consent required under paragraph (a), (b), and (c) of subsection (4) of section 158 if it is satisfied that—

(a) in the case of the parents or guardian of the child, that he has abandoned, neglected, persistently failed to maintain or persistently ill-treated the child;

Provided that:

(i) abandonment may be presumed if the child appears to have been abandoned at birth or if the person or institu­tion having care and possession of the child has neither seen nor heard from a parent or guardian of the child for a period of at least six months;

(ii) persistent failure to maintain may be presumed where despite demands made, no parent or guardian has con­tributed to the maintenance of the infant for a period of at least six consecutive months and such failure is not due to indulgence;”

“(4) In considering whether or not to dispense with the consent of any person to the making of an adoption order, or whether to grant leave or refuse leave under the provisions of subsection (1) and (2) of this section, the court shall regard the interests of the child as paramount and subject thereto, shall consider firstly the interests of the parents, guardians or relatives of the child and secondly the interests of the applicants.”

14. In this case, it was not disputed that the respondent is the biological mother of the minor whose consent is required for the adoption orders to be granted. The applicant did not however demonstrate that the respondent had abandoned, neglected, persistently failed to maintain or persistently ill-treated the minor in question so as to enable this court dispense with her (respondent’s) consent. In fact, the applicant stated in her affidavit that the respondent had lived with the minor from the time he was born till September 2016 when she voluntarily and by a consent order recorded in court gave up custody of the minor to his father (deceased) who unfortunately died in November 2016.

15. Under the above circumstances, I am not satisfied that the instant application meets the threshold of the circumstances under which the consent of the respondent, as the minor’s biological mother, can be dispensed with under section 159 of the Children Act. Moreover, the applicant has not demonstrated that the welfare or interest of the minor is currently in any danger or jeopardy while he is in the custody of the respondent so as to enable the court dispense with the respondent’s consent.

16. Section 163 (1) of the Act provides for the powers of the court on adoption application as follows:

“163. (1) The court before making an adoption order shall be satisfied—

(a) that every person whose consent is necessary under this Part, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which the application is made, and in particular in the case of a parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;

(b) that the order if made will be in the best interests of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child, and to the ability of the applicant to maintain and educate the child;

(c) that the applicant has not received or agreed to receive, and that no person had made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption;

(d) that any person whose consent is dispensed with on the grounds of incapacity is still incapable of giving consent at the date of making the order;

(e) where the applicant is not a relative of the child, that reasonable steps have been taken to inform the relatives of the child of the proposed adoption and no relative able to accept the care of the child has expressed willingness to do so; and

(f) that both the applicant and the child have been assessed and evaluated by a registered adoption society in Kenya in accordance with the regulations made by the Minister and such report has been availed to the court.”

17. In the instant case, as I have already observed in this ruling, the applicant has not shown that the respondent had consented to the intended adoption or that the circumstances of the case are such that this court should dispense with the said consent. Furthermore, in line with section 163 (1) (f), the applicant has not demonstrated that both her and the child have been assessed and evaluated by a registered adoption society in Kenya in accordance with the regulations made by the Minister and such report has been availed n court.

18. The provisions of section 163 of the Act are couched in mandatory terms which means that the court cannot by-pass them and failure to comply with any of the provisions is fatal to the applicant’s case.

19. On whether the applicant is entitled to the orders sought, I note that one of the prayers sought by the applicant is that custody of the minor be given to her. The main gist of the applicant’s case is that custody of the minor was by consent granted to the minor’s father, one JMO (deceased), by the children’s Court at Kakamega and that following the death of the said father, the children’s court erroneously revoked the said consent order and granted custody to the respondent without the participation of parties representing the estate of the deceased.

20. On the merits of the application, it is clear to me that the issue of custody of the minor was dealt with by the children’s court in Kakamega which granted the respondent the custody of the minor. My take is that this is not an appeal from the decision from the children’s court so as to entitle me to alter or vary an order of custody that had been granted to the respondent. It would appear that the sequence of events that led to the respondent taking over the custody of the minor were precipitated by a court order made in Kakamega and therefore, whether or not the said order was proper, justified or irregular are issues which can only be addressed in an application for review or on appeal and not through a fresh application for adoption and custody.

21. In my humble view therefore, the issue of custody is an issue which is res judicata having been dealt with and determined by a court of competent jurisdiction.

22. In conclusion, having found that the instant application runs afoul of the doctrine of res judicata and having found that the conditions for adoption of a child set by the provisions of Section 159, 160, 161 and 163 of the children Act have not been satisfied, I decline to grant the orders sought and dismiss the application dated 15th May 2017 with no orders as to costs.

Dated, signed and delivered in open court 10th day of October, 2017.

HON. W. A. OKWANY

JUDGE

In the presence of:

- Mr. Otwal for the Applicant

- Omwoyo court clerk