[2022] KEHC 1106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

IN THE MATTER ADOPTION CAUSE NO. 04 OF 2020

OF THE CHILDREN ACT, 2001

AND

IN THE MATTER OF AN APPLICATION FOR ADOPTION OF ABANDONED CHILD ALIAS BABY I

BY

JGG......1ST APPLICANT

JNK.....2ND APPLICANT

JUDGMENT

1. Before this Court is the Originating Summons dated 6th January 2020by which the Applicants seek the following orders:-

“1. THAT the child be presumed to be a Kenyan Citizen by birth.

2. THAT the Director of Immigration be authorized to issue the child with a Kenyan Passport.

3. THAT the Applicants herein be and are hereby authorized to adopt Abandoned Child alias Baby In and he child to be known as ABG.

4. THAT the court be pleased to appoint JKW and BWM as the Legal Guardians of Baby I in event of the death or incapacity of the Applicants before the child is of full age and fully self-reliant.

5. THAT the Registrar General be ordered to make the appropriate entries in the Adopted Children’s Register in respect of ABG.

6. THAT the court be pleased to make any further orders it deem necessary.”

2. The application was supported by the Affidavit of even date sworn by the Applicants. The matter was canvassed by way of vive voce evidence on the online platform.

3. The Applicants are a couple who got married to each other in November 2013. Their union has not been blessed with any child, hence their desire to adopt a child in order to complete their family. The Applicants each confirmed that they understood the legal implications of an adoption order. They both undertook to accord to the subject child all the rights due to a biological child including the right to inherit.

4. The prerequisites for an adoption are set out in section 156(1) of the Children’s Act 2001 which provides as follows: -

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

5. The subject child is believed to have been born on or about 15th November 2018. Accordingly, the child is now aged about 3½ years which is above the six (6) week age limit provided for in law.

6. Little Angels Network which is a registered adoption agency have annexed to their report the original copy of their certificate Serial Number xxxxxxdated24th July 2019 declaring the subject child Free for Adoption. I therefore find that all the legal prerequisites for an adoption order have been met.

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

8. The Applicants are both Kenyan citizens as proved by the copies of their National Identify Cards which have been annexed to the summons (Annexture ‘2’). As stated earlier the Applicants are a married couple who solemnized their union on 30th November 2013 at the St Joseph’s Parish. A copy of their Marriage Certificate Serial Number xxxxxx is annexed to the summons (Annexture ‘3’).

9. The Applicants do not have a biological child together. They stated that they now desire to adopt a child in order to complete their family and in order to provide a needy child with a home. They stated that their extended family are aware of and support their intention to adopt a child.

10. The Applicants are both employed. The 1st Applicant is a teacher at [Particulars withheld] High School whilst the 2nd Applicant is an Accountant employed by [Particulars withheld] Ltd. They have annexed copies of their respective payslips at Pages42and43 of the summons. The Applicants have also annexed copies of their bank statements (Annextures 8and9).

11. Aside from paid employment the Applicants also own parcels of land in Gilgil KisajuandNanyuki. I am satisfied that the Applicants are financially secure and are capable of providing for the needs of a growing child.

12. The Applicants are both Christians and intend to raise the child in the Christian Faith. They were both examined by a doctor and found to be in sound health. Both Applicants have annexed copies of their clearance certificates issued by the Kenya Police Service proving that neither has a criminal record (Annexure ‘7’).

13. Finally, the Applicants have appointed the 1st Applicants brother and sister-in-law as legal Guardians for the child. The proposed legal Guardians JKWandBWM have both signed a consent to act as legal Guardians (Annexture 12 (a)and(b)).

14. Based on the above, I am satisfied that the Applicants are suitable adoptive parents.

15. The Subject child is a boy-child who was found abandoned on 6th December 2018 in the Ndumbuiniareaof Kabete. Good Samaritans rescued the child and reported the matter at Kabete Police Station where the abandonment was recorded vide OB No. xx of 7th December 2018. Thereafter the Nairobi Children’s Court committed the child to the Nest Children’s Home for care and protection. On 26th August 2019, the child was placed into the custody of the Applicants under a Foster Care Agreement.

16. “Article 14of theConstitution of Kenya, 2010deals with the question of Citizenship.Article 14(4)provides as follows: -

“(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”.

17. The subject child was found abandoned after his birth without any clothes. He was abandoned within the Republic of Kenya. As such, I declare the child to be a Kenyan citizen by birth.

18. In deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 4(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)

19. As stated earlier the subject child was abandoned by his biological mother/parents. Efforts to trace the child’s parents have borne no fruit. No person has ever come forward to claim the child. Annexture 20 is a copy of the Final Police letterdated12th June 2019 indicating that the Childs parents could not be traced.

20. In the circumstances there exists no known person form whom consent for this adoption can be sought and/or obtained. Accordingly, I waive the requirements for consent in line with Section 159 (1) (a) Children Act.

21. Having been so abandoned the subject child faced an uncertain future living in various homes and institutions. This adoption provides the child with an opportunity to be raised in a stable and loving home environment.

22. A home visit was conducted on 16th November 2021. The Applicants live in a three bed-roomed house in Zimmerman Estate. The house which is spacious was in a secure neighbourhood and is well furnished and connected to all essential utilities.

23. I note that the child has lived with the Applicants in their home since August 2019. Undoubtedly, he has bonded with the Applicants and views them as his parents. I was able to see the child online. He was a heathy cheerful toddler who was comfortable in the arms of the Applicants.

24. I have perused the reports filed by the Adoption Agency, the Guardian Ad Litem and the Director Childrens Services. All three reports are positive and all recommend the adoption.

25. Finally, I am satisfied that this adoption serves the best interests of the child. Accordingly, I allow this application and make the following orders:-

(1) The Applicants JGG and JNK are authorized to adopt the child known as ‘Abandoned child’ alias ‘Baby’.

(2) Upon adoption the child will be known as ABG.

(3) The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and benefits in respect thereof.

(4) JKW and BWM are appointed as the legal Guardians for the child.

(5)The Registrar-General is directed to make the relevant entry in the Adopted Children’s Register.

DATED IN NAIROBI THIS 11TH DAY OF MARCH, 2022

…………………………………..

MAUREEN A. ODERO

JUDGE