[2023] KEHC 26395 (KLR)

In re JW & LN (Minors) (Adoption Cause E012 of 2023) [2023] KEHC 26395 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26395 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause E012 of 2023

HM Nyaga, J

December 13, 2023

IN THE MATTER OF AN APPLICATION FOR ADOPTION OF (MINORS) JW & LN

In the matter of

MWK

1st Applicant

TNW

2nd Applicant

Judgment

1. Vide an Originating Summons dated 1st July, 2023 brought under Sections 154, 156, 158, 159(1), 163 and 169 of the Children’s Act, Rules 4 and 7 of the Children’s Practice and procedure Rules and Rule 8 of the Adoption Rules, the Applicants herein seek, among other orders, the authority to adopt the minors, J.W and L.N.

2. According to court documents the background to this is That the children J.W & L.N were born on 5th April, 2011 and 14th April 2008 respectively to the late RWM and PGN. The said deceased was the main care giver to the minors herein at the time of her death.

3. The Minors’ father has never been actively present to care for the children and upon the demise of their mother, they were left under care of TW, who is their maternal relative and the female Applicant herein.

4. The Minors’ father PG is unwilling to take care of the minors and has consented to the minors being adopted by the Applicants herein. He has sworn affidavits both dated 29th June, 2023 to That effect.

5. According to the statement in support of the Application dated 1st July,2023, the 1st Applicant, MWK is aged 61 years old while the 2nd Applicant TNW is 59 years old. They are both dual citizens of Kenya and the United States of America, and resident and domiciled in the United States of America.

6. The Applicants are husband and wife having registered their marriage in Nakuru on 3rd March,1990.

7. They live with the Minors and have been financially supporting them since the demise of their mother. The Applicants have five other children who are adults and have consented to them adopting the minors herein.

8. The applicants also filed together with the originating summons their affidavit in support and the following supporting documents; The Applicants’ respective identification cards.

Copy of their Marriage Certificate.

Copies of the Minors’ Birth Certificates.

Copy of the Minors’ Biological mother death certificate.

Copy of the Minors’ Father Identification Card.

Minors’ father Affidavit of Consent for both minors.

Certificates declaring the children available for adoption.

Consents of the Minors to be adopted by the Applicants.

Copies of the Applicants’ salary and financial statements.

Copy of the report by Buckner Kenya Adoption Services.

Police clearance certificates of the Applicants.

Recommendations by friends dated 21st May,2023 and family member dated 17th May,2023

Medical Reports of the Applicants.

Copy of consents by the Applicants’ Biological children.

9. JMM and EWN filed a consent to act as guardian ad Litem of the said minors on 19th September, 2023. They were duly appointed as such.

10. Buckner Kenya Adoption Services filed their reports dated 23rd October,2023 declaring the children herein free for adoption. The said report indicates That the children are niece and nephew respectively of the Applicants. During the interviews, it was established the children have a cordial relationship with the Applicants and have consented to this adoption. The Minors’ maternal uncle one SK also consented on behalf of the family for the Applicants to adopt the minors. The Applicants reside in New Jersey, US but they own a five-bedroomed house That sits on its own compound at Menengai in Nakuru.

11. The applicants are also said to be committed Christians, have no history of any medical complications, substance or alcohol use and any criminal records. The report further recommends That the Applicants are fit to adopt the children.

12. The County Children’s Office Coordinator one Alice Wanyonyi from Ministry of Labour and Social Protection, State Department for Social Protection Department of Children Services filed her report on 23rd October 2023. The said report is to the effect That the applicants are socially, emotionally and financially stable and suitable to adopt the children. It also states That the children and the applicants have bonded well, and That adoption would be in the best interests of the minor.

13. At the conclusion of the hearing, counsel for the applicants filed submissions, which I have duly considered and will incorporate them in this judgment.

Issues for determination 14. The issues That arises for determination are;I.Whether the Applicant is fit to adopt the minor.II.Whether adoption is in the best interests of the child.

Analysis and Determination 15. It is important to first state the law as it is and whether the applicants have met the legal requirements for adoption of the children.

16. The relevant provisions of the law on adoption in Kenya are to be found in Part XIV of the Children Act 2022.

17. This is a Kinship Adoption. The 2nd applicant is the children’s maternal Aunt. According to the Guidelines for Alternative Family Care of Children in Kenya page 153;“Kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child.”

18. This is also a domestic adoption. In re R.N.W. (minor) (2019) eKLR the Court held That:“In Adoption Cause 75/2017, J.N.A. by Zoo and C.A.N. Achode, J held That: -“According to the guidelines for Alternative Family Care of Children in Kenya pg.153, kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child. Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoption. This is therefore considered to be a local adoption.”

19. The 2nd Applicant is married to the 1st Applicant and they are Kenyan and United States Citizens under a dual citizenship and are domiciled in the United States of America.

20. In re J N A [2018] eKLR court held That ;“The indefinite moratorium issued by the Kenyan cabinet on 27th November, 2014 involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenya applicants, even those living abroad. Dual citizenship in our country is anchored in Article 16 of the Kenyan Constitution.According to the Guidelines for Alternative Family Care of Children in Kenya page 153, “kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child.” Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoptions. This is therefore considered to be a local adoption.”

21. Having considered the Summons ,statements and Affidavit in support of summons and perused said reports filed by Buckner Kenya Adoption Societies and County Children’s Coordinator, and all the documentation filed in support thereof , I am of the view That the Applicants do possess the requisite legal capacity to adopt the children and they understand the entire adoption process plus its future implications for themselves as a family and in particular, the need to provide the best for the adopted children all their life.

22. Further, the Applicants have fulfilled all the legal requirements relating to the adoption of the minors. The 1st Applicant is 61 years old while the 2nd Applicant is aged 59 years. They are therefore within the age bracket eligible to adopt, being adults having attained the age of 25 years and are at least 21 years older than the child but have not attained the age of sixty-five years as provided by Section 186(2)(a) of the Children’s Act No. 29 of 2022.

23. The Applicants are also emotionally capable, medically fit and financially able to adopt the children herein. They have undertaken to assume all the parental rights and duties of the biological parents in respect of the adopted children and to provide for them adequately.

24. Having also considered the summons in light of the above Law Provisions, I am satisfied That the Applicants are fit to adopt the minors herein.

25. Article 53 (2) of the Children’s Act emphasizes That the child’s best interests are of paramount importance in every aspect concerning the child’s welfare.

26. This is further emphasized under Section 8 of the Children’s Act That:“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.”

27. Section 186 of the Children’s Act mandates the court to make an adoption order if it is satisfied That it is for the best interest of the child and upon all legal requirements being complied with.

28. In Weller & Others vs Associated Newspapers Ltd {2015} ALL ER (D) 194:“These best interest may be held in a variety of different contexts for example the balancing exercise must always be undertaken in children’s cases as in adult cases although a child’s right is not a trump card in the balancing exercise, the primacy of the best interests of a child means That, where a child interest would be adverse by affected, they must be given considerable weight.”

29. Children’s Act the Geneva Declaration of the Rights of the Child {1924} in Article (2) provides:“That the child shall enjoy special protection, and shall be given opportunities and facilities, by Law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of Laws for this purpose the best interest of the child shall be the parent considerations.”

30. The best interest of the child’s right is a principle derived from Article 3 of the United Nations Convention on the rights of the child That: -“In all actions concerning children whether undertaken by the public or private social welfare institutions, courts of law administrative authorities of legislative bodies, the best interests of the child shall be primary consideration”.

31. In Re B(BABY)[2018]eKLR the court stated That,“The purpose of Kenya’s Constitution and Children Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern therefore in every adoption cause provision is of the best interest of That very child…It is That family unit That the constitution contemplates under Article 45 which also has to take responsibilities in fulfilling the obligations enjoined in Article 53 of the same Constitution.”

32. The children need parental care and guidance, food, shelter, education and clothing. The applicants have successfully demonstrated That they have the psychological and emotional capacity as well as the material resources to raise the children in a loving home environment.

33. The children are said to have bonded well with the Applicants and have consented to being adopted by them. The children’s mother is deceased and their biological father has consented to this adoption.

34. Also the Applicants have proposed JMM (50 years) & EWMM (38 years) to be appointed the legal guardians to the children. In the aforesaid report by Buckner Kenya Adoption Services, it is indicated That the proposed guardians understand their role and gave their written consent on 24th May,2023.

35. It is therefore, in my opinion, in the best interest of the children, That the Applicants be allowed to adopt the minors in order to give them a home and to look after them.

36. Having stated the above, I note one issue. The applicants filed the originating summons under certificate of urgency. They sought among other orders That they be allowed to travel with the subjects to the United States of America where they can continue with their studies. Whereas this is a good deed, I think That prior arrangements ought to be made for this. It is not certain when they will resume their classes. I therefore would hold That particular prayer in abeyance.

37. Therefore, I make the following orders;i.That the Applicants be and is hereby authorized to adopt the child J.W.ii.That the Applicants be and is hereby authorized to adopt the child L.N.iii.That the Registrar General be and is hereby directed to enter the adoption orders in the Adopted Children’s Register and to issue certificates to That effect.iv.That the orders appointing JMM and EWN as the guardians ad litem are hereby revoked.v.That S.K. is hereby appointed the legal guardian of the children under section 195(1) of the Act.vi.That Leave of the Court shall be sought by the applicants before they seek to remove the two Children from the Jurisdiction of this Court.

DATED, SIGNED AND DELIVERED AT NAKURU THIS DAY OF 13TH DECEMBER, 2023. H. M. NYAGAJUDGE