[2023] KEHC 27172 (KLR)

In re MMM (Minor) (Adoption Cause E167 of 2022) [2023] KEHC 27172 (KLR) (Family) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27172 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E167 of 2022

PM Nyaundi, J

December 1, 2023

IN THE MATTER OF THE CHILDREN’S ACT (2022) AND IN THE MATTER MMM (MINOR) AND IN THE MATTER OF AN APPLICATION FOR ADOPTION

In the matter of

JAOW

Applicant

Judgment

1. This is a kinship adoption as the minor is a niece to the Applicant. She is a daughter to the applicant’s deceased cousin. The Applicant has presented Originating Summons dated 9th September 2022. The applicant has been married since 2018 to DSW as per marriage license serial number xxxx. The husband is a foreigner and has given his consent to this adoption. She wishes to adopt the baby with the intention to provide an opportunity at a better life. The applicant has one child.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 13th July and 26th October 2023.

3. The Applicant is Kenyan Citizen residing in The United States of America. She avers that she has the financial means and capability to take care of the Child. The applicant is an Accountant at (particulars withheld) in the State of Ohio. She fully understands the consequences of an adoption order.

4. The minor was born on 22nd october 2012 as per the birth certificate annexed serial number (particulars withheld) to GAA . the biological mother passed away on 12th may, 2019 as per annexed death certificate serial number (particulars withheld).The minor was seven years old. Consequently, the minor moved in to stay with her maternal uncle Mr. KOO since her father is unknown and stranger to her maternal family.

5. The basic needs of the minor are fully provided for by the said uncle with the help of the applicant and guardian herein. The minor was in court, she stated that she understood she was in court for adoption and consented to the same.

6. Prior to the hearing of the adoption application, kenya children’s homes prepared a report dated 14th september 2022 and issued a certificate serial no. (particulars withheld) declaring the child free for adoption. on 3rd november 2022 the court appointed a guardian ad litem Berryl Marinda.

7. The Guardian Ad litem, Berryl Marinda was present in court. she confirmed that she assessed the applicant. she presented her report dated 18th November 2022. she recommends that the applicant be allowed to adopt the minor.

8. an officer of the department of children services, john nyongesa wafula prepared a report dated 6th july 2023. the report establishes that the minor was born in the year 2012 to one Grace Atieno (deceased). Details of the biological father are not known. She is officially registered as a child of a single parent as per birth certificate number (particulars withheld), entry no.(particulars withheld).The mother died on 12th May 2019 (death certificate number (particulars withheld), entry number (particulars withheld)). Since 2019,the minor has been under the care of her maternal uncle KOO ID Number (particulars withheld) .KOO is married with six children. He is a businessman based in Nairobi trading in electronics. His wife and children together with the minor in question stay in Kombe village in Mbita.

9. The minor is under orphans and vulnerable sponsorship programme at Gethezemane Garden of Hope School, a boarding school at Mfangano Island in Suba Central Sub County. KOO informed the office that they agreed as a family that the minor be given for adoption to JAO (ID No: (particulars withheld)) who is her aunt. The officer interviewed the minor who confirmed knowing JAO; the prospective parent. She expressed her desire and willingness to be adopted and that she has bonded well with JAO.

10. The proposed Legal Guardian KOO attended court and confirmed he is willing to take up the role of legal guardian. He is the brother of the applicant.

11. This is a kinship adoption under Section 193 of the Children Act, 2022 and Annex Cat Page 153 of the guidelines for Alternative family care of Children in Kenya, 2014 which defines Kinship adoption as adoption of a child by a person who is a relative of the child.

12. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.a.The Court may make an adoption order on application (1) by-A sole applicant; orTwo spouses jointly.(2)The Court shall not make an adoption order in any case unless—The applicant has attained the age of twenty-five years, but is not above the age of sixty-five years: andThe applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

13. The Applicant is aged 40 years.

14. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child

15. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child.In all actions concerning children, whether undertakenb. (1 )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;b.The best interests of the child shall Include, but shall not be limited to the Considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is made the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

16. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated 9th september 2022 and order as follows:i.The applicant JAO wade be allowed to adopt MMMii.The child is to be known as MMMiii.The child be presumed to be a kenyan citizen by birth born 22nd october 2012 at mbita town.iv.KOO is hereby appointed as legal guardian of childv.The registrar be and is hereby directed to enter this adoption into the register of adopted children.vi.The director of immigration is authorized to issue the child with a kenyan passport.vii.the guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 1ST DAY OF DECEMBER, 2023. P M NYAUNDIHIGH COURT JUDGEIn the presence of: Ms Akoko Advocate for Applicant