[2021] KEHC 13474 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

ADOPTION CAUSE NO. E013 OF 2020

IN THE MATTER OF CHILDREN’S ACT 2001

IN THE MATTER OF NW

IN THE MATTER OF AN APPLICATION BY WWM

JUDGMENT

1. Before this court is the originating summons dated 14th February 2020 by which the Applicant WWM seeks the following orders: -

1. “SPENT

2. THAT the Applicant be authorized to adopt NW

3. THAT upon adoption NW be known as NW.

4. THAT the registrar general be directed to enter this adoption into the register of adoption.

5. THAT the child shall be presumed to be Kenyan citizen and be accorded all rights of immigration that accrue to Kenyan citizens”.

2. The application was supported by the statement of the Applicant dated 14th February 2020. The summons was canvassed by way of vive voce evidence on the online platform.

3. The Applicant WWM Ltd the court that she currently resides in Boston Massachusetts in the USA where she is a social worker. The applicant has never been married but had two daughters. Her eldest child DW who is the mother of the Subject child passed away on 10th September 2009(barely six (6) months after the birth of the child). The Applicant now seeks to adopt her said grandchild.

4. PKTHE Guardian Ad litem. MR EZEKIEL KIMANIrepresenting the Director of children’s Services, both testified online confirming that they had filed their reports recommending the adoption.

5. PW 4 DWis the daughter of the Applicant. She too lives and works in BOSTON USA. PW 4confirmed that subject child was the daughter of her late sister. She confirmed that she was aware of and fully supported the intention of the applicant to legally adopt said child.

ANALYSIS AND DETERMINAITON

6. I have carefully considered this application for adoption the various Affidavits and Reports on record as well as the relevant law. I have also considered the evidence adduced in open court. The preliminary requirements for the making of an Adoption Order are set out in Section 156(1)of the Children’s Act 2001which provides as follows: -

“159(1) No arrangement shall be commenced for the adoption of a child unless the child is at least six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.”

7. The subject child was born on 2nd March 2009as evidenced by the copy of her Birth Certificate (Annexture WM -2(a) Serial Number XXXXwhich is annexed to the Applicants statement. Therefore, the child is now aged about 12 ½ years old and is way above the six (6)week age limit provided for in law. Annexed to the Report of the Adoption Agency is the original copy of the Certificate Serial Number 109issued by the KKPIdeclaring the child free for Adoption. I am therefore satisfied that all the legal pre-requisites for an adoption order have been met.

8. The duty of this court is to anyalze the material placed before it to determine whether the Applicant is a suitable adoptive parent. The Applicant is a Kenyan citizen as evidenced by the copy of her National Identity Card which has been annexed to her statement (Annexture ‘WM-1”).

9. The Applicant though a citizen of Kenya currently resides and works in the United States of America.The Applicant told the court that she works in the USAas a social worker. Annexed to her statement is a letter dated 11th July 2019from the [particulars withheld] Human Services Inc. confirming that the Applicant is employed by the said company (Annexture ‘WM – 6’). The Applicant told the court that she earns the equivalent of Kshs 500,000 which is more than enough to provide for the needs of the child.

10. Additionally the Applicant has annexed copies of Title Deeds for various properties which she owns in Kenya as well as her bank statements (Annextures ‘WM-13’) all of which indicate that she is financially stable.

11. The Applicant was examined by a Doctor and was found to be of sound physical and mental health. The medical report prepared by Dr John Wairegion 8th October 2019at [particulars withheld] Health Centrein Thikais Annexture WM-‘12’)

12. The applicant has also annexed a report issued by the Massachusetts Department of Criminal Justiceas well as a clearance certificate issued by the Kenya Police Service (Annextures 11 (a)and 11 (b)) indicating that she has no criminal record.

13. This is a family (kinship) adoption as the Applicant is the maternal grandmother of the Subject child. The current legal Guardian of the child JMwho the Applicant’s sister has consented to the adoption. Indeed, the Applicant has been providing financial assistance towards the education and upkeep of the child.

14. The Applicants daughter DWtestified online. She confirmed that she was aware of and fully supported her mother’s intention to adopt the Subject child. Indeed the Applicant has appointed her said daughter as legal Guardian for the child. The said DWhas consented to act as legal guardian in the event the Applicant is unable or unavailable to care for the child. The Guardian letter of consent as well as her passport have been annexed as WM – 7 (A)and 7(a).

15. All in all based on the foregoing I am satisfied that the Applicant is a suitable adoptive parent.

16. The Subject child is a girl – child who was born on 2nd March 2009. A copy of the child birth certificate serial Number 439115 is Annexture WM – 2(a) to the Applicant’s statement. The child was born to DW,who was the Applicant’s daughter and one E S O O.The child’s biological mother unfortunately passed away about six (6)months after the child was born. The Applicant told the court that an inquest into her daughter’s death being Inquest No. XX of 2011was conducted at the Nairobi Chief Magistrates and vide a Ruling delivered on 8th June 2018, Hon Ooko Chief Magistrate found that the Deceased had been poisoned. The court further found that the circumstantial evidence implicated the child’s father E Oin the death.

17. In said Ruling (Annextrue ‘WM-8’) the court stated as follows –

“with respect as to who might have been responsible/or culpable for the deceased’s death, I do find as quite imperative the circumstantial evidence tendered by P.W (Olive Mnagi). That circumstantial evidence in my humble opinion tends to implicate the deceased’s husband namely E O either with an omission and/or commission on his part towards the deceased’s poisoning. Consequently, I hereby recommend that he be investigated afresh by the Nairobi County Criminal Investigating Officer for the possible role he might have played or failed to play towards the poisoning of the deceased. This fresh investigations should establish if the deceased either committed suicide or she was poisoned using the aforesaid pesticide (Karate).”

18. Following this Ruling the child’s father filed suit No. XXX of 2001 in the Nairobi Children Courtseeking to be awarded legal custody of the child vide. Vide a Ruling delivered on 4th April 2011the Children Courtawarded legal custody of the child jointly to the Aunt and father of the child. The court award actual custody of the child to the Aunt JW with unlimited access being granted to the father.Hon C. A OCHARO, Principal Magistrate made the following orders with respect to the custody of the child-

“IT IS HEREBY ORDERED: -

1. THAT the surviving parent of the child (father) having objected to the Applicant (JW) being appointed legal guardian of the minor the Application be and is hereby disallowed.

2. THAT the Applicant JW do have actual custody, care and control of the minor.

3. THAT the child’s father and Actual Custodian JW do have joint legal custody of the minor.

4. THAT the child’s father do have unlimited access to the minor but with prior agreement with JW.

5. THAT parties do agree on modalities.

6. THAT the father do have access every weekend with effect from 9th day of April 2011.

7. THAT the child’s maternal relatives not to remove the minor out of the court’s jurisdiction without the father’s consent or leave of the court.

8. THAT parties be at liberty to apply.

9. THAT each party do bear their own costs.”

19. However from the date of that Ruling despite having been granted joint legal custody and unlimited access to the child the father has made no attempt to visit and/or or provide for the child at all. He has effectively abandoned the child to her maternal relatives. Indeed there is evidence vide a marriage certificate serial Number XXXXXXthat the child’s father re-married on 2nd March 2011which may explain his disinterest in this particular child.

20. Section 158(4)(a)of theChildren Act, 2001provides as follows:-

“(4) Subject to Section 159 an adoption order shall be accompanied by the following written consents to the making of an adoption order in respect of any child.-

(a) The consent of every person who is a parent or guardian of the child, or who is liable by virtue of any order or agreement to contribute to the maintenance of the child.”

21. Neither the Adoption Agency nor the Director of children’s services obtained a statement from the child’s biological father. This court did however summon the father E S O Oand he did appear before the court online on 16th September 2021. He confirmed that he was the biological father of the child and confirmed that the child’s mother passed away in 2009. The father told the court that a few months after the mother’s death the child was taken away by children’s officers. The father sought time to obtain legal counsel on the question of adoption. The court adjourned to enable him seek counsel but on the next mention date of 30th September 2021he did not appear to report back to the court.

22. My own opinion is that this is a father who has effectively abandoned his child. The father stated in court that

“I have not seen my child for the past ten (10) years. I do not even know what she looks like……”

23. Clearly, this is a father who has no interest in his child. He has made no effort to see or reach out to his for the past ten years. The father has not contributed at all to the child’s education and/or upkeep. When given a chance by the court to participate in this adoption process, the father instead opted to disappear proving that he had no interest in the welfare of his child at all. In the circumstances, I find that the father has abandoned the child and that accordingly there is no biological parent from whom consent for this adoption can be obtained. Therefore, I waive the requirement for the father’s consent in line with Section 159 (1) (e) Children Act

24. In deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 44(2) of the Children Act 2001provides:-

“(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”. (Own emphasis)

25. This is a child who lost her mother in infancy and who has been abandoned by her biological father. The child’s maternal family took her in and have raised her to date. The child has been living with the Applicant’s sister in Nairobi and the Applicant has kept close contact and has made financial provision for the child’s education. This is a kinship adoption thus the child will remain within the same family.

26. I was able to see and talk to the child online. She was a healthy, happy and cheerful child. The child confirmed that she knew the Applicant as her maternal grandmother. She stated that she regularly talks to the Applicant and expressed her desire to be adopted by the Applicant.

Section 76(3)(a)of the Children Actwhich provides :-

“(3) where the court is considering whether or not to make an order with regard to a child, it shall have particular regard to the following matters –

(a) The ascertainable feelings and wishes of the child concerned with reference to the child’s age and understanding” (own emphasis)

At the age of 12 years the Subject child was well able to articulate her wishes to the court.

27. The various reports filed in court all recommend the adoption. I am satisfied that the adoption will serve the best interests of the subject child. Accordingly, I do allow this application and made the following orders: -

(1) The Applicant is authorized to adopt the child NW.

(2) Upon adoption the child shall be known as NW.

(3) The Registrar General is directed to make the relevant entry in the Adopted Children Register.

(4)NW is appointed at the legal Guardian for the child.

(5) The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and liberties due to a citizen of Kenya.

DATED IN NAIROBI THIS 22ND DAY OF OCTOBER 2021.

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MAUREEN A. ODERO

JUDGE