[2019] KEHC 6565 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIVASHA

(CORAM: R. MWONGO, J)

ADOPTION CAUSE NO. 4 OF 2018

IN THE MATTER OF THE ADOPTION OF

LMW..................................MINOR

BY

LMM........................APPLICANT

JUDGMENT

1. The application before the court is an originating summons filed on 5th November, 2018 and seeks, substantively, that the Applicant be authorized to adopt the minor child LMW.

2. The application is made under Sections154, 156, 158 159(1), 163 and 169of the Children’s Act No 8, 2001.

3. The applicant is the maternal Aunt of the Minor. The mother of the Minor, BWM, the applicant’s sister, died on 5th August, 2018, leaving the Minor entirely in the care and custody of both the applicant. And her grandmother MWM. Records and documents verifying all these facts were provided by the applicant.

4. The Minor, born on 26th February, 2009, has for years been in the care of the applicant as her single mother lived with physical and mental challenges, and struggled with alcoholism, and could therefore not take care of the Minor all along.

5. The Guardian ad litem of the Minor, MWM, is the Minor’s grandmother and mother to both the Minor’s late mother, B, and the applicant. She was appointed by this Court as such guardian on 3rd April, 2019, and has filed an affidavit in support of the applicant’s application for adoption of the Minor. In her affidavit, she asserts, amongst other things, that: the Minor has been in her custody and that of the applicant; that the applicant has the means to enable her maintain and bring up the Minor; that the Minor and the applicant have developed proper social bonds; and that the proposed adoption will be in the best interests of the Minor.

6. Upon the Court’s enquiry as to the whereabouts of the Minor’s biological father, the applicant filed a Further Supplementary Affidavit on 28th March 2018, which states, inter alia as follows: that upon the birth of the Minor, she took up the name of her mother, W, the mother being called BWM; that the Minor’s mother was not married and lived as a single mother; that due to the fact that the Minor’s mother was alcoholic and perpetually sick and bed-ridden, she could not care for the Minor; that as a sister to the Minor’s mother, it fell upon her to take over the care and maintenance of the Minor which she had been doing since the Minor was six (6) months old; that the father of the Minor never came to be known to the family and never came to claim the Minor as his daughter; that the applicant had lived with her sister, the Minor’s mother, for a long time since her illness; that it would be in the best interests of the child for her to adopt the Minor

7. The Children’s Department, through the Naivasha Sub-county Children’s Officer under the Ministry of East African Community, Labour and Social Protection availed a letter dated 24th October, 2018, confirming that: the Minor had been the victim of child neglect as the Minor’s mother was a perpetual alcoholic; that the applicant, in consultation with the child’s grandmother MWM (the Guardian ad litem) had accepted to take care of the child; that the child’s mother died on 5th August 2018; that the applicant sought to formalize the kinship adoption of the Minor; and that the applicant had demonstrated ability to take care of the welfare of the Minor.

8. The Chief of Naivasha Town Location under the Ministry of Interior and Co-ordination of National Government had written a letter to the Deputy Registrar, High Court dated 25th October, 2018 confirming as follows: that the Minor and her late mother were known to him; that the Minor’s mother had been sick and bed-ridden prior to her death on 5th August, 2018; that the Minor had been taken in and looked after and educated by the applicant.

9. The Court is satisfied from the applicant’s bank statements and trade licenses that the applicant has the financial means to shoulder the burden of taking care of the needs of the Minor. It has also seen a letter from the Head Teacher of the Minor’s school (Name withheld) confirming that the Minor is a student there, and that her guardian is the applicant.

10. In his submissions to the court, counsel for the applicant cited the following authorities in support of the application:

a) Adoption Cause No 26 of 2016, Nakuru, J aka JN Minor and PWK and ANW citation In re J (Minor) [2018] eKLR,

b) Adoption Cause No 75 of 2017, Nairobi In the Matter of Adoption of JNA by ZOO and CAMcited as In Re JNA [2018] eKLR and

11. Article 53(2) of the Constitution, provides the over-arching principle which must apply whenever any decision concerning a child is to be undertaken. It provides that:

“A child’s best interests are of paramount importance in every matter concerning the child”

12. This constitutional and internationally applicable principle is embedded and amplified in the Children’s Act, No 8 of 2001, particularly at section 4(3) of the Act.

13. In Re J (Minor), the court dispensed with the consent of the biological mother where the child was abandoned, and waived the requirement of a freeing certificate. The applicants there had demonstrated that they had the ability to maintain baby JN, had bonded well with the baby and had readily accepted the child as one of their own. The court stated as follows:

“...this court is satisfied that this is a kinship adoption and that the Applicants are suitable persons to adopt baby JN aka JNW and that they are financially stable and have the means to provide and care for him”

14. In Re JNA [2018] eKLR the court reiterated the concept of “local adoption” when it stated as follows:

“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.”

The Court cited with approval the Guidelines for Alternative Family Care of Children in Kenya page 153which states as follows:

“kinship adoption is adoption by adapters who are kin or relatives within the extended family of the child”

15. This court is satisfied that in the present case, this is a kinship adoption, and is also a local or domestic adoption. The court is also satisfied that the applicant is a suitable person with the demonstrated the financial and social means to provide and care for the Minor, and has been doing so for a considerable period prior to making this application. It is also noted that the applicant and the Minor have a sound relationship and bond well.

16. For all the above reasons, the court has formed the opinion that it is in the best interest of the Minor that she be adopted by the Applicant. Accordingly, I allow the prayers sought in the Originating Summons and hereby order as follows:

a) The Applicant LMM is hereby authorized to adopt the Minor LMW.

b) The Court waives the need for a formal evaluation report of the Director of Children’s Department, it having been demonstrated that the Minor has for a considerable period been in the care and custody of the Applicant in the fashion of a mother and daughter relationship.

c) The requirement for a report of the Child Welfare Society report is hereby dispensed with as the Minor is not being adopted from an institution.

d) The Registrar General is hereby directed to enter this Order in the Adoption Register.

e) The Guardian ad litem is hereby discharged

f) Costs of this application to be borne by the applicant.

17. Orders accordingly.

Dated and Delivered at Naivasha this 22nd Day of May, 2019

__________________________

RICHARD MWONGO

JUDGE

Delivered in the presence of:

1. Mr. Gichuki Advocate for the Applicant

2. LMM - Applicant

3. Mary Wangari - Guardian

4. Court Clerk - Quinter Ogutu