[2013] KEHC 6247 (KLR)
The court determined that, notwithstanding the applicants' compliance with other statutory requirements and the favourable reports from the adoption society and the Director of Children Services, the absence of the guardian ad litem's report is a fatal procedural defect. The Children Act mandates the appointment and...
Source-derived case information.
- Citation
- [2013] KEHC 6247 (KLR)
- Parties
- Applicant: Charles E B; Applicant: M N B; Guardian Ad Litem: P W W
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 85 of 2012
- Procedural Posture
- Adoption Cause / Interlocutory Order Pending Compliance
- Outcome
- adoption application deferred pending compliance
- Judges
- DN Musyoka
- Legal Topics
- Adoption Procedure, Guardian Ad Litem, Child Abandonment, Child Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles E B
Applicant
M N B
Applicant
P W W
Guardian Ad Litem
Procedural Posture
Adoption Cause / Interlocutory Order Pending Compliance
Legal Issues
- 1 Whether the statutory requirement for filing a guardian ad litem report has been complied with in the adoption proceedings.
- 2 Whether the adoption can be determined in the absence of the guardian ad litem's report.
Ratio Decidendi
The court determined that, notwithstanding the applicants' compliance with other statutory requirements and the favourable reports from the adoption society and the Director of Children Services, the absence of the guardian ad litem's report is a fatal procedural defect. The Children Act mandates the appointment and reporting by a guardian ad litem in all adoption proceedings. The court cannot proceed to determine the adoption application until this statutory requirement is satisfied. Accordingly, the court ordered the guardian ad litem to file the required report within 21 days and scheduled the matter for mention after 30 days for compliance and further orders.
Court Disposition
adoption application deferred pending compliance
Orders
- The guardian ad litem is ordered to file her report in court within 21 days.
- The matter shall be mentioned after 30 days for compliance and further orders.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
ADOPTION CAUSE NO. 85 OF 2012 (OS)
AND
IN THE MATTER OF THE CHILDREN’S ACT
(NO. 8 OF 2001)
AND
IN THE MATTER OF BABY K H (minor) also known as A C
JUDGEMENT
The applicants, Charles E B and M N B, are a married couple; the first applicant is a citizen of the United States of America, while the second applicant is a Kenyan national. They seek in their Originating Summons dated 20th April 2012 to adopt Baby K H also known as A C O (minor).
Baby K H (minor), the subject of these adoption proceedings, is a child who was found abandoned at the (withheld) Hospital on 10th January 2011. He was estimated to have been two months old or thereabout at the time. His estimated date of birth (withheld). A report of the abandonment was made at the Kondele Police Post, from where he was referred to the New Life Home Trust for care and protection. He was subsequently formally committed to that institution by the Winam Children’s Court. No one has ever claimed him. The Little Angels Network freed him for adoption, by their certificate dated 21st September 2011. He was placed with the applicants for adoption purposes on 29th October 2011. A detailed background, complete with relevant correspondence and other documents, is contained in the report of the Little Angels Network dated 21st September 2011 and filed herein on 23rd May 2012.
To facilitate the adoption the applicants have been assessed by the Little Angels Network and by the Director of Children Services. These two have compiled and filed their reports in court, dated 7th September 2011 and 14th August 2012, respectively. All these reports are favourable and recommend the proposed adoption. The applicants have demonstrated that they have the financial and emotional capability and capacity to take care of the child. The child appears to have bonded well with the applicants and he considers them to be his parents.
I note that the report of the guardian ad litem is not on record. It is a requirement under the Children Act that a guardian ad litem be appointed, one was appointed in this case, P W W. The guardian ad litem is required to file a report for the purposes of the adoption proceedings. It is a mandatory requirement of the law. I cannot decide this matter before that requirement has been complied with. The guardian ad litem is hereby ordered to cause her report to be filed in court within 21 days. The matter shall be mentioned after 30 days for compliance and for further orders.
Dated, signed and delivered on this 27th day
of June, 2013
W. MUSYOKA
JUDGE