[2014] KEHC 1163 (KLR)
The court found that the applicants failed to comply with two mandatory statutory requirements for adoption under the Children Act. First, they did not produce certificates of good conduct to demonstrate they had no criminal convictions, as required by section 158(3). Second, the child was declared free for adoption...
Source-derived case information.
- Citation
- [2014] KEHC 1163 (KLR)
- Parties
- Applicant: F K N; Applicant: C W K; Respondent: Director of Children’s Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 93 of 2014
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- application denied
- Judges
- AO Muchelule
- Legal Topics
- Adoption Procedure, Fitness of Adopters, Criminal Record Checks, Adoption Society Clearance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
F K N
Applicant
C W K
Applicant
Director of Children’s Services
Respondent
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the applicants have satisfied the statutory requirements for adoption under the Children Act.
- 2 Whether the applicants have provided certificates of good conduct as required by section 158(3) of the Children Act.
- 3 Whether the child was properly declared free for adoption by a registered adoption society as required by section 156(1) of the Children Act.
Ratio Decidendi
The court found that the applicants failed to comply with two mandatory statutory requirements for adoption under the Children Act. First, they did not produce certificates of good conduct to demonstrate they had no criminal convictions, as required by section 158(3). Second, the child was declared free for adoption nine months after being placed with the applicants, contrary to section 156(1), which requires such declaration before placement. These procedural lapses are fatal to the application, regardless of the applicants' financial and social suitability. The court therefore denied the adoption application until the statutory requirements are fully satisfied.
Court Disposition
application denied
Orders
- The application for adoption is denied until the applicants have produced certificates of good conduct and complied with the statutory requirements regarding declaration of the child as free for adoption.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ADOPTION CAUSE NO. 93 OF 2014
IN THE MATTER OF THE CHILDREN ACT (CAP 141)
AND
IN THE MATTER OF CHILD L. aka N.P.
AND
IN THE MATTER OF AN APPLICATION FOR ADOPTION BY
F K N AND C W K
JUDGMENT
The applicants have applied to adopt child L. aka N.P. They are a couple who married on 10th March 2001. Their marriage was blessed with two daughters, but one passed away leaving them with their 11 year old child R.J.K.
I was not able to grant the couple’s request to adopt the child for two reasons. One, under section 158(3) of the Children Act (Cap. 141) -
“An adoption order shall not be made if the applicant or, in the case of joint applicants, both or any of them –
(a) .......
(b) has been charged and convicted by a court of competent jurisdiction for or any of the offences set out in the Third Schedule to this Act or similar offences.”
For the court to be persuaded that the applicants do not have any criminal history, each needed to file a certificate from the police. Such certificate would have shown that each applicant is of good conduct and therefore fit to adopt the child. None was produced. Secondly, under section 156(1) of the Act:
“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 the rules prescribed in that behalf.”
It is an offence under section 156(3) of the Act to contravene the above provision. In this case, the Director of Children’s Services pointed out that the child was declared free for adoption nine months after she had been placed with the applicants.
Although the applicants have the financial and social ability to care for the child who has been in their continuous care and custody since 10th April 2013, the application or adoption is denied until they have sufficiently dealt with these issues.
DATED and DELIVERED at NAIROBI this 28th November, 2014.
A.O. MUCHELULE
JUDGE