[2022] KEHC 15987 (KLR)

In re MB aka JCB (Baby) (Adoption Cause E060 of 2022) [2022] KEHC 15987 (KLR) (Family) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15987 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E060 of 2022

MA Odero, J

December 2, 2022

In the matter of

PKK

1st Applicant

SNN

2nd Applicant

Judgment

1. Before this court is the originating summons dated May 5, 2022 by which the applicants PK and SNN seeks the following orders:“1. That the consent of the biological parents of Baby MB aka JCB be dispensed with since the infant was abandoned by his biological mother.2. That the Applicant be is hereby authorized to adopt Baby MB aka JCB and the child be called MDK.3. That the Registrar-General do make the appropriate entries in the Adopted Children’s Register in respect of Baby MDK.4. That NNM and JWN be appointed the legal guardian of MDK.5. That the court to issue such other orders it deems necessary in the best interest of the child6. That the cost be in the cause.”

2. The summons was supported by the statement of the Applicants and was canvassed way of viva voce evidence on the virtual platform.

3. The Applicants are Kenyan citizens who got married to each other in the year 2014. They have no biological children due to medical complications. They stated that they have decided to adopt a child in order to complete their family and to provide a needy child with a home.

Analysis and Determination 4. The prerequisites for before an adoption order can be made are set out in section 184 (1) (a) and (b) of the Children Act, 2022: -“(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.”

5. The subject child is believed to have been born on or about July 1, 2020, therefore, he is now 2 years 8 months and is above the six (6) weeks age limit provided for in the law.

6. KKPI Adoption Society, which is a registered adoption agency, has annexed to their report serial No XXX dated August 25, 2022 declaring the child free for adoption. In the circumstances, I am satisfied that the legal prerequisites for an adoption order have been met.

7. The duty of this court is to analyze the evidence and the material presented before it to determine whether the Applicants are suitable adoptive parents.

8. The Applicants are Kenyan citizens as evidenced by copies of National identity (annexed Exhibit 9(a) and 9 (b) attached to their summons. The Applicants have been married for the last ten (10) years having first conducted a Kikuyu Customary marriage in the year 2014. The couple solemnized their union on March 7, 2019 at the Registrars office evidenced by the marriage certificate of serial No 376604. Applicants stated they have not been able to conceive due to medical complications.

9. The Applicants told the court that they were motivated to adopt the child due to their love for children from the desire that built up when they were young from the love that they saw their parents extend to needy people in the society. They also stated that they wanted to complete their family through adoption.

10. The 1st applicant PKK – is a Prisons Officer at [Particulars withheld] whilst the 2nd Applicant SNN – is a Civil Servant (Assistant director) at the Ministry of [Particulars withheld].

11. The Applicants are both financially stable earning a joint monthly income of Kshs 200,000/- which is sufficient to provide for the needs of the child. They have parcels of lands in different areas and have rental units in Kilifi town where the 1st Applicant works.

12. The Applicants are Christians and intends to raise the child in the Christian faith.

13. The Applicants stated they have no criminal record as evidenced by their clearance certificates issued to them by the Directorate of Criminal Investigations.

14. They have appointed NNM and JWN as the legal Guardians for the child. The two have signed the consent dated March 5, 2022 indicating their willingness to act as legal guardians.

15. Based on the material evidence presented before this court, I find the Applicants to be suitable adoptive parents.

16. The subject child is presumed to have been born on or about July 1, 2020. The child was later found abandoned near Kafri Forest. The baby was rescued and the matter reported to Police station vide OB 45 of August 11, 2020. The child was referred to Kakamega County Referral Hospital for observation and treatment but later on discharged on September 11, 2020.

17. On June 14, 2021 Childrens Court Kakamega committed he child to Pefa Rehema Children’s Home. Thereafter the child was placed with the adoptive parents on September 1, 2021 under a Foster Care Agreement.

18. Article 14 (4) of the Constitution of Kenya, 2010 provides that: -“(4)A child found in Kenya who is, or appears to be less than eight years of age and whose nationality and parents are not known, is presumed to be a citizen by Birth.”

19. The subject child was found abandoned at birth in Kakamega Forest within the Republic of Kenya I hereby declare him to be a citizen of Kenya by birth.

20. Efforts made to trace the biological mother or other relatives of the child have born no fruit as per to the final police letter dated August 11, 2021 (Annexture 6).

21. Given that the subject child was abandoned at birth there exists no known person from whom consent for this adoption can be sought and/or obtained. In circumstances, I do waive the requirement for consent in line with Section 187 (1) (a) of the Children Act, 2022.

22. In deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the child. Section 8 (1) of the Children Act, 2022provides: -“(8. (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;” (own emphasis)

23. This is a child who was abandoned at birth. He faced uncertain future living in orphanages or other similar institutions. The Adoption allows the child the opportunity to be raised in a loving stable environment, which is certainly in his best interest. The Subject child has lived with the Applicants since September 2021. I have no doubt he has bonded with the couples. I was able to see the child online. He was a happy toddler seated on his mothers laps.

24. A home visit was conducted on July 1, 2022 at the female applicant’s rural home at Karura where baby Miles stays with the grandparents. The home is conducive for raising a child though the couple are constructing a home in Ruiru where they intend to make a home. The Applicants have employed two nannies one taking care of baby Miles and another one doing house chores.

25. I have perused the reports prepared by the Adoption Agency, the guardian ad litem and the Director of Children services. All three reports are positive and all recommend the adoption.

26. In conclusion I find this adoption will serve the best interest of the child. Accordingly, I allow this summons and make the following orders: -1. The applicants are hereby authorized to adopt baby MB aka JCB.2. Upon adoption the child shall called MDK.3. The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and privileges arising therefrom.4. The Registrar-General do make the appropriate entries in the Adopted Children’s Register in respect of Baby MDK.5. NNM and JWN are appointed the legal guardian of MDK.

DATED IN NAIROBI THIS 2ND DAY OF DECEMBER, 2022. …………………………………MAUREEN A. ODEROJUDGE