[2019] KEHC 12447 (KLR)
The court found that the applicant had fulfilled all statutory prerequisites for adoption under the Children Act, 2001, including continuous custody of the child for over two years and positive recommendations from both the adoption society and the Children’s Office. Although the adoption society was improperly...
Source-derived case information.
- Citation
- [2019] KEHC 12447 (KLR)
- Parties
- Applicant: LAM; Respondent: Little Angels Network
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 2 of 2018
- Procedural Posture
- Adoption Cause / Ruling
- Outcome
- adoption order granted with conditions
- Legal Topics
- Adoption Orders, Child Welfare, Guardianship, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
LAM
Applicant
Little Angels Network
Respondent
Procedural Posture
Adoption Cause / Ruling
Legal Issues
- 1 Whether the applicant has met all statutory requirements for adoption under the Children Act, 2001.
- 2 Whether the adoption is in the best interests of the child.
- 3 Whether the appointment of Little Angels Network as guardian ad litem was proper under the law.
Ratio Decidendi
The court found that the applicant had fulfilled all statutory prerequisites for adoption under the Children Act, 2001, including continuous custody of the child for over two years and positive recommendations from both the adoption society and the Children’s Office. Although the adoption society was improperly joined as guardian ad litem contrary to Section 160(3), this procedural irregularity did not affect the substantive merits of the application. The court held that the adoption was in the best interests of the child, subject to the applicant nominating a suitable guardian for the child in the event of her death or incapacity, as required by Section 164(1) of the Act. The adoption...
Court Disposition
adoption order granted with conditions
Orders
- The subject child, CBA, is formally adopted by the applicant, LAM.
- The applicant must provide the name and consent of an adult relative or responsible person to act as guardian in the event of her death or incapacity, within seven days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
ADOPTION CAUSE NO.2 OF 2018
IN THE MATTER OF CBA.....THE CHILD
BETWEEN
LAM ..........................................APPLICANT
AND
CBA appearing through LITTLE ANGELS
NETWORK .........GUARDIAN AD LITEM
RULING
1. An adoption order respecting the subject child, CBA, is hereby sought by LAM, vide her application dated 3rd May 2018, presented on her behalf by G.S. Okoth & Co. Advocates. The grounds in support of the application are contained in her statement dated 3rd May 2018, duly adopted in her supporting affidavit deponed by herself on the 3rd May 2018 and consented to by her two adult biological children namely:COM and MAO.
2. The documents accompanying the application indicate that the subject child was found abandoned at [particulars withheld] in Kakamega on the 7th November 2014. The necessary report was made to the local police and the children’s office and on 15th October 2015, the child was committed into the legal custody of the children Transformation Project vide an order of the court in Protection and Care case No.380 of 2015 at the Chief Magistrate’s Court in Kakamega.
On the 17th June 2016, the Adoption Society, Little Angels Network, cleared the child for adoption on the basis that she was an abandoned child in need of alternative family care in order to benefit from family love, care and provision as opposed to being under institutional care.
Most important, the society opined that adoption would be in the child’s best interest.
3. A report by the Homa Bay Children’s Office dated 25th March 2019 also recommended adoption for the child and indicated that the applicant herein would be suitable to undertake that legal obligation. Such obligation is provided for by the Children Act 2001, under its Part XII.
Section 154 (1)of the Act, grants the High Court the power to make adoption orders and under Section 157 (1), any child resident within Kenya may be Adopted whether or not the child is a Kenyan citizen, or was or wasnot 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 Kenya for a period of three consecutive months preceding the filing of the application and both the child and the applicant have been evaluated and assessed by a registered adoption Society in Kenya.
4. Herein, all the pre-requisite conditions have been fulfilled by the applicant who has been the custodian of the subject child for more than two (2) years prior to making this application. However, the adoption society Little Angels Network was wrongly enjoined as the guardian ad litem for the purposes of the child’s adoption. This was contrary to the provisions of Section 160 (3) of the Children Act.
Nonetheless, the appointment of a guardian ad litem expires upon the making of a final order by the court (see, Section 160 (4) of the Act) and this court after due and careful consideration of this application do hereby order that the subject child be formally adopted by the applicant on condition that she provides the name of an adult and able relative of hers or any other responsible person with their consent to act as a guardian of the child in the event of the applicant’s “god forbid” death or her becoming incapacitated before the child is of full age as provided for under Section 164 (1) of the Act.
The condition be complied with within the next seven (7) days from this date hereof and in that regard matter be mentioned in court on 8th April 2019 in the presence of the applicant and the proposed guardian.
J.R. KARANAJAH
JUDGE
04. 04. 2019
[Read and signed this 4thday of April, 2019].