[2022] KEHC 16389 (KLR)

In re LJ alias AW (Minor) (Adoption Cause E027 of 2021) [2022] KEHC 16389 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16389 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E027 of 2021

MW Muigai, J

November 1, 2022

IN THE MATTER OF THE CHILDREN ACT, 2001 AND IN THE MATTER OF BABY LJ alias BABY AW (MINOR)

In the matter of

SMM

1st Applicant

RMM

2nd Applicant

Judgment

1. The applicants, SMM and RMM (“the applicants”) sought by their application to be allowed by this court to adopt baby LJ (hereafter “the child”).

2. Vide originating summons application dated November 22, 2021 the applicants sought among other orders, orders from this court that FMM be appointed as the child’s guardian Ad Litem, that the Applicants be authorized to adopt baby LJ alias baby AW and the baby be known as SMM , that JMM and JMT be appointed as the legal guardians of the child and that the Director of children’s services to investigate the suitability and fitness of the applicants to adopt the child and submit a report. FMM was appointed guardian ad Litem on 1/02/2022.

3. The child who is the subject of the present adoption proceedings was reportedly found abandoned on November 3, 2019 at Kerugoya county & referral hospital, and was estimated to be five days old at the time of the abandonment. The hospital reported that the mother by the name AWW gave birth on February 3, 2019 and due to complications the baby was placed at the hospital nursery for further medical care and the mother was advised to wait in the hospital until the baby’s condition stabilizes but she disappeared leaving the baby behind. The incident was reported at Kerugoya police station on the same day and it was recorded vide OBNo XXXX and the baby placed in a home for further care. He was later committed to new life home trust Nyeri on 29/04/2019 by the court. On May 27, 2019 baby LJ was committed to the care and protection of Neema house infant rescue center through the children’s court at Kerugoya videcommittal protection and care case No 7 of 2019 and the previous committal orders at New Life Home revoked. On August 19, 2019 Kerugoya police station confirmed that no one had claimed the baby since he was reported abandoned and that efforts to trace the mother had proved unsuccessful.

4. The following documents were availed from Neema infant rescue centre for baby LJ :- Extract from OB records at Kerugoya police station

Hospital discharge summary from Kerugoya county referral hospital dated 17th April,

Letter from Kerugoya children’s office to the court dated May 27, 2019.

Admission Form to Neema infant house dated May 27, 2019

Committal order to Neema infant centre dated May 27, 2019

Neema house infact rescue centre child’s case summary

Chiefs letter dated September 18, 2019

Final police letter dated August 19, 2019

Baby’s photo

Declaration certificate No. XXXX

5. Pursuant to section 156(1) of the Children Act, Kenya children’s homes, the relevant adoption society, prepared and filed in court a favorable report in respect of the proposed adoption of the child by the applicants. Another report in respect of the proposed adoption of the child by the applicants was prepared by the Director of children’s services, and this report was similarly in favor of the proposed adoption. The guardian Ad Litem, FMM, also filed the statutory report pursuant to section 160(2) of the Children Act in which he noted that the proposed adoption of the child by the applicants would be in the best interests of the child.

6. The Change Trust Adoption Agency filed their report dated April 29, 2019. On September 25, 2022 Ms Lizzie Agala from the agency appeared in court and confirmed that the child subject of these proceedings was declared free for adoption on September 29, 2019. That the applicants were interviewed and approved. The applicants SMM and RMM are husband and wife. They were married in the year 2005. They have successfully adopted one child by the name PK aged 9 years old. Both applicants are very active at church and they are members of the clergy. They live in a two bedroomed house in [Particulars withheld] flats Athi River. Their total income is Kshs 25,000/-. The applicants own houses in [Particulars withheld] and have also inherited properties that are not officially allocated. Their financial documents show that they have the means to adequately provide for the child. The case committee at Change Trust sitting on July 29, 2019 considered the application by the applicants and approved them as suitable adoptive parents.

7. The Director of children services through a report dated May 5, 2022 in respect of the proposed adoption of the child by the applicants was prepared by MM Athi River Sub- County Children’s Officer. Ms MM appeared in court on September 22, 2022 and confirmed that The applicants SMM and RMM are legally married and they have another adopted child by the name PK . The child was placed with the applicants on October 20, 2019. Both applicants are very active at church and they are members of the clergy. On observation during the visits it was established that they have bonded quite well with the child. The applicants are socially and economically endowed to take care and care for the minor comfortably. The adoption was recommended.

8. The guardian ad Litem, FMM interacted with the adoptive parents for over ten (10) years and visited the family and they are friends and attend the same church. The applicants have bonded well with the child. The child knows their lifestyle. The applicants are being supported by the extended family. She recommends the adoption.

9. The legal guardians JMM & JMT filed their report on September 22, 2022 and stated that they understand that as the legal guardians they are expected to take over parental responsibility over the minor in case of death of the applicants or total incapacitation and disability. They gave consent and recommended the adoption.

10. All the statutory reports that have been filed in respect of the proposed adoption of the child by the applicants have recommended that this court allows the adoption of the child. This court has evaluated the facts of this adoption. This is a local adoption. It is evident that the applicants have fulfilled all the legal requirements relative to the adoption of the child.

11. The home visits by the guardian ad litem, the adoption society and the Director of the children’s services established that the applicants are financially and socially stable and have emotional capability to provide for the upkeep and education of the child and give parental care. This court observed the applicants with the child in court and it was evident that in the period that the applicants has had the custody of the child, the child has bonded well. The child considers the applicants to be his parents.

Disposition 1. On the basis of a careful examination of the documents presented before this court as well as the observations made therein, this court has formed the opinion that it would be in the best interest of the child to be adopted by the applicants. Hence, this court allows the applicants application.

2. The applicants, SMM and RMM are hereby allowed to adopt Baby LJ alias baby AW . Henceforth, the child shall be known as SMM .

3. The child’s date of birth is January 28, 2019 and the place of birth shall be Kirinyaga county.

4. The child is a Kenya citizen by birth and entitled to all rights of a Kenyan citizen.

5. JMM & JMT shall be the legal guardian of the child should such eventuality arise.

6. This court directs the Registrar General to duly enter this order in the adoption register.

7. The guardian ad litem is hereby discharged.

It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS THIS 1TH DAY OF NOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:MUNYAKA - FOR THE APPLICANTSGEOFFREY/PATRICK - COURT ASSISTANT (S)