[2022] KEHC 16274 (KLR)

In re JN aka J (Minor) (Adoption Cause 32 of 2015) [2022] KEHC 16274 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16274 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause 32 of 2015

TM Matheka, J

December 13, 2022

IN THE MATTER OF AN APPLICATION OF (MINOR) JN AKA J

GWG .........................APPLICANT

Judgment

1. By the originating summons dated July 8, 2015 GWG sought, among other orders, the authority to adopt the child by the name J to be known as JN.

2. According to court documents the background to this was that the child was abandoned at a tender age and by the date of the application, no one had come forth to claim her and efforts to trace her parents were in vain.

3. The applicant filed together with the originating summons, her affidavit in support, and the supporting documents viz;a.The agreement for foster parent marked as exhibit 1b.A letter dated August 14, 2014 from Child Welfare Society of Kenya marked as exhibit 2. c.Seventh Schedule dated January 12, 2015 marked as exhibit 3. d.A copy of the adoption process commitment form marked as exhibit 4. e.A copy of letter dated November 19, 2013 marked exhibit 5.

4. On December 9, 2019, Child Welfare Society of Kenya (CWSK) filed their report declaring the child free for adoption.

5. The report indicates that the child was born on November 6, 2014 at Moi Teaching and Referral Hospital (MTRH) and registered as JC, Hospital No xxxx. This information is contained in the letter ref Eld/MTRH/CLIN/4/36/VOL 111/2014, dated November 8, 2019 by the CEO Dr Wilson K Aruasa. In the letter he said upon birth the baby was admitted to the newborn unit for her follow up.

6. There is a letter stamp dated October 1, 2019 from Eldoret Police Station stating that the mother of the child one CJ had abandoned her baby at the Moi Teaching and Referral Hospital and the report was made vide OB 34/8/1/2014.

7. The letter signed by one Cpl Agatha for the OCS Eldoret states;“To The In chargeChild Welfare Society of KenyaBox 43982 – 00100,Nairobi.Dear sir/madam,RE: Abandoned Child At Moi Teaching And Referral Hospital.We are confirming the report of abandoned child at the above facility by the alleged mother CJ which was reported to this station vide OB xxxxxx since that date no one has come to report the missing child and no claims have been made so far.You are therefore free to commit her anywhere. Thanks in advance.”

8. The discharge summary from the Moi Teaching And Referral Hospital indicates that the baby by the name of JC was admitted in the hospital on January 6, 2014 as an abandoned baby and discharged on January 24, 2014 to Child Welfare Society of Kenya.

9. By a report dated January 24, 2014 the District Children Officer Eldoret West requested the court at Eldoret to commit the child to CWSK. He wrote;“P & C 50/2014The Chief MagistrateEldoret Law CourtRE: Request For CommittalName: Baby JAge: Three WeeksSex: FemaleDOA: January 8, 2014OB No xxxxxxHIV Status: negativeParentsUnknownSiblingsUnknownCase HistoryThe above named child was abandoned by her mother at MTRH on January 8, 2014. The patient’s mother pretended to be granted permission to buy snacks but she did not report back. The case was reported at Central Police Station and the child was admitted at NBU for further management.RecommendationThe minor herein is a child in need of care and protection after a Good Samaritan rescued her. Currently the minor is sheltered at Referral. Since MTRH is a temporary shelter for the minor, I hereby request this honorable court to commit the minor to Arap Moi Children’s home.Child Welfare Society of Kenya will facilitate the minor’s transportation since they are the custodians of the minor.Subject to court ruling.Vitalis K KipyegoFOR: District Children OfficerEldoret West.”

10. On February 5, 2014 vide P & C No 50 of 2014 the child was committed to CWSK for three (3) years.

11. In April, May and August 2014, CWSK ran adverts in The Daily Nation and Taifa Leo with the photos of several children, including the subject herein, seeking to have the families identify them. The adverts were headed. Still no one came up to claim the child. On August 14, 2014, GWG entered into a foster agreement with the CWSK to foster baby J.

12. In their report, CWSK stated;“Over five years have elapsed since the child was reported abandoned thus Baby J is presumed abandoned in line with section 159 (1) (a) (i) of the Children Act 2001 which provides that “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 or heard from a parent or guardian of the child for a period of at least six months.” Through adoption, Baby J will be placed in permanent alternative family care and will be accorded parental attention. This will enable her grow up in a family setting that will provide her a sense of identity, love and belonging.In line with section 159 (1) (a) (i) of the Children Act, 2001; we therefore declare baby B’ JC AKA Baby J AKA J available for adoption.”

13. The County Coordinator Children’s Office, Nakuru filed her report on 1February 7, 2020. The applicant was found suitable in all aspects to be an adoptive mother and recommend her for the adoption order sought.

14. The cause was heard by oral evidence.

15. I heard the legal guardian, BKG, the brother to the applicant. He understands his role. I also heard the applicant. She had lived with the child since 2014 to date.

16. From the foregoing the only issue is whether the applicant is deserving of the orders sought and whether the orders would be in the best interest of the child.

17. The applicant is a single applicant, who has fulfilled all the legal requirements. She has bonded with the child and after all this time she can only get the order. This case is similar to In re Baby CK (Child) [2021] eKLR where the court expressed the view that;“…it is in the best interest of the child to be adopted by the applicant. The applicant has demonstrated her capability to provide a conducive home and family environment in which the child will grow and develop. She will assume all parental rights and obligations of the biological parents of the child once adopted, and shall treat her as if he was born to her. She has been made aware that once the adoption order is made, it shall be final and binding during the lifetime of the child. The child shall have the right to inherit her property. The applicant shall not be able to give up the child owing to any subsequent unforeseen behaviour or other changes in the child. The consent of the mother of the child is dispensed with since the child was found abandoned.”

18. It is apparent that this matter has been in the system since 2015. The record indicates that the delay was mostly due to the absence of the requisite report from the Director of Children Services, then parties were not available until April 21, 2022 when the matter proceeded for hearing. The guardian ad litem also took a longtime to file his report.

19. Certain concerns arise however, was the child abandoned at the hospital or outside the hospital and then brought in for rescue? There is a suggestion that the child was born in the hospital and then the mother abandoned the child. To that end the hospital records as presented are incomplete as they do not give the full details of the mother of the child. The details must have been known, because according to their letter she gave birth there, hence, there ought to have been a notification of birth for the child issued to CWSK bearing the full details of the child and her mother.

20. Secondly the police exhibit a serious laxity, in their attitude towards the report of abandonment, there was no evidence of their taking nay action at all by way of conducting any investigations with a view to tracing the mother of the child, yet they are statutorily authorized persons, I found it unfortunate that the officer could put it on record that the CWSK was at liberty to commit the child “anywhere” without any suggestion of any follow up.

21. The police have a role even in cases of children in need of care and protection to investigate the circumstances, because even the abandonment of the child itself is an offence, as it amounts to causing the child to become in need of care and protection. The mother could have suffered from post natal baby blues or the more serious post-partum depression and could be looking for her baby. We cannot know until the police do their job at the point of reporting. It is no wonder that the Children Act 2022 requires at section 242 for the setting up of a special police unit in the following terms;“A special police unit shall be designated by the Inspector General to—(a)deal with children matters;(b)prevent and control child offences;(c)apprehend child offenders;(d)investigate child offences; and(e)perform such other functions as may be referred to the unit by this Act or by regulations under this Act or by any other enactment.”

22. This will in my view ensure that children get the time and resources they require. In a case such as this if the parent is found culpable of willful neglect and abandonment; holding such a parent accountable is in order and brings closure to the child even where the child ends up being adopted. Where the parent may have other challenges the investigations would enable the provision of the requisite support.

23. That said, I find that the applicant is suitable and even with the concerns I have pointed out, it still in the best interests of the child that I allow the originating summons in the following terms;1. The consent of the biological parents of the minor herein be and is hereby dispensed with since the child was abandoned to date has remained unclaimed and efforts to trace the parents proved futile.2. The applicant be and is hereby authorized to adopt and the child be henceforth to be called JN.3. That the Registrar-General do make the appropriate entries in the adopted children’s register with respect to the child and a subsequent birth certificate be issued by the Registrar of Births and Deaths.4. BKG be and is hereby appointed as the legal guardian.5. The guardian ad litem is discharged.6. That the costs be in the cause.

DATED, SIGNED AND DELIVERED THIS 13 TH OF DECEMBER, 2022. MUMBUA T MATHEKA,JUDGE.C/A EdnaOnchweri Ngamate & Co Advocates