[2023] KEHC 25680 (KLR)

In re LM (Child) (Adoption Cause E002 of 2022) [2023] KEHC 25680 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25680 (KLR)

Republic of Kenya

In the High Court at Nyeri

Adoption Cause E002 of 2022

FN Muchemi, J

November 16, 2023

IN THE MATTER OF ADOPTION OF LM(CHILD)

In the matter of

BM

1st Applicant

NMM

2nd Applicant

Judgment

Brief facts 1. The Amended Originating Summons dated 24th October 2022 seeks for orders of adoption of baby LM . The applicant also seeks for orders that the name of the subject be changed to LMM and that the Registrar General do make an entry in the Adopted Children’s Register to that effect.

The Applicants’ Case 2. The 1st applicant is a Swiss national and holder of passport number X1282998 and a resident of Kenya on a work permit or resident permit number xxxx . He avers that he married the 2nd applicant on 29th May 2019 and that the couple live in their matrimonial home at [Particulars withheld]where they both carry out peasant farming. the 1st applicant aged 67 years and his wife is 25 years old and is the biological mother of the child who has been in their care since 2018. He avers that he wishes to adopt the minor to make his family complete.

3. The applicants state that they are fit socially and financially empowered to take care of the child for their joint monthly income is in excess of Kshs. 50,000/-. It is further averred that the applicants have been certified to be of good conduct by the Director of Criminal Investigations and as such, suitable as an adopting parent.

Issue for determination 4. The main issue for Determination is whether the applicants have satisfied the legal requirements under the Children’s Act to be granted the orders of adoption.

The Law 5. The preliminary requirements for the making of an adoption order are set out in Section 156(1) of the Children’s Act (now repealed) which provides as follows:-No arrangement shall be commenced for the adoption of a child unless the child is at least six (6) weeks old and has been declared free or adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.

6. Thus for an adoption order to ensue the following ought to be taken into consideration: -a.A child must be at least six (6) weeks old and free for adoption;b.The child concerned must have been in the continuous care and control of the applicant within Kenya for a period of three (3) consecutive months preceeding the filing of the application; andc.Both the child and the applicant have been evaluated and assessed by a registered adoption society in Kenya.

7. Pursuant to the Birth Certificate annexed by the 2nd applicant, the child was born on 28th October 2012 and is therefore aged 10 years and 10 months. The Change Trust, a registered adoption agency declared the child free for adoption vide the certificate serial number xxxx. The society’s report was filed on 20th January 2023 and noted that the 2nd applicant is the biological mother of the child. No information about the biological father was available and as such the 2nd applicant is the only known parent. It was stated that the biological father is not known to the 2nd applicant’s family nor did he take up any parental responsibilities of the child after birth. The report of the Director of children dated 22nd June 2022 confirms the fact that the subject was brought up by his grandfather until his own mother, the second applicant herein, became financially capable of taking care of him.

8. The court has a duty to assess the suitability of the applicants as adoptive parents to the child. The 2nd applicant is the biological mother of the child whereas the 1st applicant is the husband of the child’s biological mother. The applicants got married on 29th May 2019 under the Marriage Act 2014 and have annexed their marriage certificate number xxxx. The 2nd applicant is a Kenyan citizen as evidenced by the copy of her passport number AK0xxxx whilst the 1st applicant is a citizen of Switzerland as shown by his annexed copy of passport number Xxxxx.

9. There is in place a moratorium barring the adoption of Kenyan children by foreign nationals. However in special circumstances the said moratorium can be waived as in this case where the foreigner, the 1st applicant is legally married to a Kenyan citizen, under the Kenyan law. The 1st applicant is thus seeking to adopt the biological child of his Kenyan spouse. The couple have demonstrated that they are resident in [Particulars withheld] area of Nyeri county. It is therefore my considered view that this is a kinship or family adoption and is therefore a suitable case for waiving of the moratorium.

10. In deciding upon any matter involving a child the court is required to give priority to the best interests of the child pursuant to Article 53 of the Constitution. The reports by the Director of Child Services and the Change Trust Adoption Agency demonstrate that the applicants are in a stable family and have jointly cared and provided for the child for the last four years. The couple is financially able to provide for the needs of the child. The applicants earn over Kshs.50,000/= through running a business and subsistence farming in [Particulars withheld]. Both applicants were examined and found to be medically fit. The father of the 2nd applicant supports the adoption as he resides with the applicants in their farm. It is noted that he used to take care of the minor before his mother took over. The two reports recommend the adoption of the minor by the applicants. The Director of Children Services indicates that special consideration ought to be given due to the fact that the 1st applicant is above the age of 65 years. The report further provides that the applicants have satisfied all the requirements for local adoption as per the Children Act 2022 and recommended adoption.

11. I have carefully considered the material presented by the parties and the reports filed herein. It is my considered view that the applicants meet the parameters of suitability for adoption and that this adoption serves the best interests of the child.

12. Consequently, I allow the prayers in the Amended Originating Summons in the following terms:-a.That applicants are hereby authorised to jointly adopt Baby LM .b.That the 2nd applicant is hereby appointed the legal guardian of the child.c.That the Registrar-General is hereby directed to make the necessary entry in the Children Adoption Register.d.That there shall be no order as to costs.

DATED AND SIGNED AT NYERI THIS 16THDAY OF NOVEMBER, 2023. F. MUCHEMIJUDGE