[2022] KEHC 16316 (KLR)

In re NJ (Baby) (Adoption Cause 4 of 2020) [2022] KEHC 16316 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16316 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Adoption Cause 4 of 2020

RM Mwongo, J

December 13, 2022

IN THE MATTER OF BABY NJ AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY MMM AND BMM ……………………………..APPLICANTS

Judgment

1. The applicants are husband and wife, married at the Kenya Assemblies of God Church, [Particulars withheld] on November 29, 2003. Since marriage, they have been unable to have a child despite assisted medical conception. According to the Children Officer’s report ordered by the court, dated January 13, 2021, they have a monogamous and stable marriage. They annexed their marriage certificate to their application.

2. The couple resides in Kerugoya where they run a [Particulars withheld] store and earn about 50,000/- per month according to audited accounts. They also have two parcels of land and a vehicle – all of which indicate they have sufficient financial resources to enable them to bring up the child and take care of all his needs.

3. The prospective couple have been bringing up their nephew LMM since he was aged 14 years, now aged 17, son of the 2nd applicant’s sister EW. They live in their two bedroomed house; have a strong social support system from members of the extended family, church, friends and business community, and a shared motivation to adopt a child.

4. On June 17, 2019, Baby NJ was placed with the couple as prospective parents, following a Foster Care and Placement Agreement dated June 17, 2019 with Mahali Pa Maisha Infant Rescue Centre. He was then seven months old. and they have lived and cared for him since then. According to the Children Officer’s report and the documents placed before the court, the child was found abandoned by the mother at [Particulars withheld] area in Kyumbi town, Machakos, rescued by a good samaritan and taken to Machakos Level 5 Hospital.

5. This is further affirmed by a letter from Police Officer IC Kyumbi Police Station dated 15/1/2019 shows that the Report or OB entry indicating the abandonment, or evidence of a search by the police to trace the child’s mother was placed before me. It states that:“The abovenemed child was abandoned by her mother on November 11, 2018 at [Particulars withheld] area within Kyumbi town. The matter was reported at Kyumbi Police Station vide OB No xxxx.Investigations are under way to trace the parents”

6. The child’s birth certificate indicates that he was born on November 10, 2018. By a court order in Machakos Children’s Court Protection & Care Case No 74 of 2018, the child was placed under protective care at Mahali Pa Maisha Infant Rescue Centre. Subsequently, the child was given up by that centre for adoption. For the purposes adoption, the Change Trust Society has been responsible for the child’s legal adoption arrangements.

7. The couple’s originating summons application for adoption was filed on July 29, 2020, and is in accordance with sections 158 and 170 of the Children Act. On December 16, 2020 this court ordered that a Children’s Officer do prepare and file a report of the suitability of the applicants. In compliance, such a report was filed on January 13, 2021, making reference to the proposed Guardian ad Litem, who had however, not been appointed by court.

8. Pursuant to an amended summons filed and heard on November 25, 2021, the court appointed JK and Mrs. JK jointly as Guardian Ad Litem, and directed them to file a report on the child in accordance with their duty under the Children Act. The amended application also sought that the child NJ be named as NGMM; and that the mother’s consent be dispensed with.

9. In addition, although the schedule in the amended application indicates, and seeks, that the date of birth of the child be deemed to be November 11, 2018, this is obviously a typographical error, and the court will treat it as such for the following reasons: The particulars of the child in the application have all along indicated his date of birth as November 10, 2018; The child’s birth certificate indicates his date of birth as November 10, 2018; both the Children’s Officer’s and Guardian ad Litems’ reports indicate the child’s birth date as November 10, 2018; The report to declare the child free for adoption is consistent with the other reports and, finally, there is no other evidence availed for the date of November 11, 2018.

10. As already intimated, and pursuant to the provisions of section 15(1) of the Children Act, and Regulation 16 of the Adoption Regulations, 2005, the Change Trust assessed the applicants and their backgrounds, evaluated their referees, and the applicants’ capacities to adopt a child. Being satisfied that the child was available for adoption which would be in the best interest of the child, the trust issued a certificate to declare the child free for adoption No 00303. On May 24, 2019, the trust issued a detailed positive report dated to declare the child free for adoption. All the information and documentation regarding the history of the child was verified and availed to Change Trust.

11. I have carefully considered the application for adoption and all the documents availed to the Court in support of the application. Both of the guardians ad Litem and the Children’s Officer also appeared before me. The guardians and also the Children Officers reports filed in court both urge the court to allow the adoption by the applicants in the best interests of the child.

12. I do not deem it necessary to dwell in great detail with the content of each of the said reports, or the annexures thereto. Nor need I detail the fact that the couple has been fostering the child since 17th June 2019. Suffice it to say that article 14(4) of the Constitution relates to children found in Kenya who appear to be less than eight years old and whose nationality and parents are not known. Article 53(2) of the Constitution requires that the court treat as paramount, the child’s best interests in any matter concerning the child.

Confirmation of Abandonment 13. The police letter already referred to asserts that the child had been abandoned. The Change Trust report also confirms the abandonment as does the Children Officer report.

14. Thus, legal abandonment may be presumed in terms of the proviso to Section 159(1)(a)(i) of the Children Act, which provides as follows:“(i)Abandonment may be presumed if the child appears to have been abandoned at birth or if the person or institution having care and possession of the child has neither seen nor heard from a parent or guardian of the child for a period of at least six months”

15. This court confirms, finds and holds that the child was and is deemed to be abandoned in law. As such the court hereby dispenses with the provision for consent for adoption by a parent or guardian or any other person, required under section 158(4)(a-f) of the Children Act.

Whether an Adoption Order can be made 16. This court has power pursuant to section 154 of the Children Act, to make an adoption order. However, for adoption to take place: A child must be at least six weeks old and free for adoption;

The child concerned must have been in the continuous care and control of the applicant within Kenya for a period of three consecutive months preceding the filing of the application; and

That both the child and the applicant have been evaluated and assessed by a registered adoption society in Kenya.

17. The above requirements are provided for in section 156-157 of the Children Act which contains the prerequisites for adoption and as to children who can be adopted. The sections provide as follows:“156. (1)No arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with this rules prescribed in that behalf.(2)It shall not be lawful for any person whether being a parent or guardian of a child or otherwise, or for an adoption society by whom arrangements for adoption of a child are made, to place a child into the care and possession or control of a person who proposes to adopt him, if an adoption order in respect of the child cannot be lawfully made in favour of that person.(3)Any person who contravenes the provisions of this section shall be guilty of an offence and liable to imprisonment for a term not exceeding six months or to a fine not exceeding ten thousand shillings or to both.

157. (1)Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya: Provided that no application for an adoption order, shall be made in respect of a child unless the child concerned has been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants, as the case may be evaluated and assessed by a registered adoption society in Kenya.(2)Any person who contravenes the provision of subsection (1) of this section shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding twenty thousand shillings or to both such imprisonment and such fine.”

18. The Department of Children’s Services in its report requested by the court recommended the applicants for adoption of the child. Similarly, the guardianad litem and the legal guardian have all recommended adoption of the child by the applicants as being in the best interests of the child. These are the persons who have been given legal standing to make statements on behalf of the child.

19. The reports show that the applicants have had the child since June 17, 2019 and have been raising him with love and affection in their home; that they have the financial ability to take care of the child; that their home environment is safe secure and satisfactory; and that the child is relating well with them.

20. In my view, the applicants have complied with all the requirements of the law for purposes of adoption and that it is in the best interests of the child that they be permitted to adopt the child.

Disposition 21. The court is satisfied that the provisions of part XII of the Children Act on adoption have been complied with. In exercise of the powers of the court under section 163 prior to making an adoption order, the court notes:a.The relevant consents were dispensed with under section 159 of the act this being an abandonment case in respect of a baby abandoned at about two weeks after birth;b.That the best interests of the child have been taken into account, it being noted that the child is not able to indicate his wishes except as perceived by the legal guardian and guardian ad litem, all of whom recommend the adoption by the applicants;c.That the applicants have the ability to educate and take care of the child and have not received or agreed to receive any reward in consideration for the adoption;d.That there is no one whose consent can be lawfully received, and no one is capable of so doing;e.That the applicants are not relatives of the child, and no relatives of the abandoned child have ever come forward;f.That both the applicants and the child have been assessed and evaluated by Change Trust, duly registered under the Children Act, and the evaluation reports and supporting documents availed to the court.

22. This court is satisfied that in the present case, this is an abandonment adoption, and is also a local or domestic adoption. The court is also satisfied that the applicants are suitable persons with the demonstrated financial and social means to provide and care for the Child, and have been doing so for a considerable period prior to making this application. It is also noted that the applicants and the minor have a sound relationship and bond well.

23. For all the above reasons, I allow the prayers sought in the originating summons and hereby order as follows:a.The applicants MMM and BMM are hereby authorized to adopt the Minor NGMM previously known and referred to as NJ.b.That the child be and is hereby renamed NGMM.c.That the child be and is hereby presumed to be a Kenyan citizen having been found abandoned in Kenya approximately two weeks after birth.d.That the child’s birth date is hereby declared to be November 10, 2019, in Kyumbi town in Machakos County.e.That the Registrar General is hereby directed to enter this order in the adoption register for adopted children.f.That JK and JW are hereby discharged as the guardiansad litem of the child hereing.Costs of this application to be borne by the applicant.

24. Orders accordingly.

DATED AND DELIVERED AT KERUGOYA THIS­­­­­ 13TH DAY OF DECEMBER, 2022__________________________RICHARD MWONGOJUDGEDelivered by video-conference in the presence of:1. Wahome Advocate for the Applicants.2. Court Assistant - Mr. Murage