[2022] KEHC 1862 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

ADOPTION CAUSE NO. E066 OF 2021

IN THE MATTER OF THE CHILDREN ACT

AND

IN THE MATTER OF THE ADOPTION OF BABY D (A CHILD)

BY

AM& EGN

JOINT APPLICANTS

JUDGMENT

1. Before the Court is the originating summons dated 17th June 2021 by which the Applicants seek the following orders: -

“1. THAT the applicants be authorized to adopt the child BABY D.

2. THAT the consent of the biological parents be dispensed with as the child was abandoned.

3. THAT upon the making of the adoption orders the said child be known as GWKM.

4. THAT the Registrar General do make the appropriate entry of GWKM in the adopted Children’s Register.

5. THAT the child GWKM be presumed to be a Kenyan citizen born in Kenya and that the Director of Immigration Services do issue GWKM with a Kenyan Passport.

6. THAT ANN be appointed legal Guardian of the child GWKM.”

2. The application was supported by the sworn statement of the Applicants and was canvassed by way of vive voice evidence on the online platform.

3. The Applicants AMNJAGI and EGNare a couple who got married to each other in the year 2012. Their union has not been blessed with any offspring hence their desire to adopt a child.

4. The Applicants both confirmed that they understood the legal implications of an adoption order. They undertook to accord to the Subject child all the rights and privileges due to a biological child.

5. The prerequisites for an adoption order 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.”

6. The Subject child was born on or about 1st July 2017. He is now about 4 ½ years old which is above the six (6) weeks age limit provided for in law. Child Welfare Society of Kenya which is a registered adoption agency had annexed to this summons the original copy of their certificate dated 10th June 2018 Serial No 0939 declaring the child Free for Adoption. Accordingly, I am satisfied that all the legal pre-requisites for an adoption order had been met.

7. The duty of this court is to analyze the evidence before it and determine whether the Applicants are suitable adoptive parents. The Applicants are both Kenyan Citizens as evidenced by the copies of their National Identify Card which have been annexed to the summons.

8. As stated earlier the Applicants are a married couple having contracted their union under Embu Customary Law in the year 2013. The couple have not had any child together and now seek to adopt the Subject child in order to complete their family.

9. The Applicants are both Christians and intend to raise the child in the Christian Faith. They are both employed. The 1st Applicant works as a Geologist with GM Ltd whilst the 2nd Applicant is a Police Officer attached to the[particulars withheld]. Annexed to their supporting Affidavit dated 1st February 2022 is a letter dated 31st January 2022 confirming that the 1st Applicant is an employee of GM Ltd. The Applicants have also annexed copies of Bank Statements from Equity Bank Tom Mboya Branch.

10. In addition to income derived from employment the Applicants also own a plot in Thika as well as parcels of land in Embu County. They realize a joint income of about Kshs 100,000 which is certainly sufficient to provide for the needs of a growing child. I am satisfied that the Applicants are financially secure.

11. The Applicants told the court that their extended family are aware of and support their intention to adopt the child. They have appointed ANNwho is the sister of the 1st Applicant as the legal Guardian for the child. The said legal Guardian has sworn an Affidavit of consent dated 17th June 2021.

12. Both Applicants are of sound physical and mental health and they have annexed copies of clearance certificates issued by the National Police Service proving that neither has any criminal record. On the whole I am satisfied that the Applicants are suitable adoptive parents who have genuine desire to provide the Subject child with a stable home.

13. The Subject child was born on or about 1st July 2017. On 4th June 2017 only three days after his birth the child was left wrapped in a shawl outside a workshop in the Makuyu area of Muranga County. A good Samaritan rescued the child and reported the matter at Muranga Police Station vide OB Number xxof4th July 2017. The baby was then taken to the Murang’a Rescue Centre which is run by child Welfare Society of Kenyaand was committed to said institution by the Murang’a Childrens Court on 2nd November 2017. Thereafter the child was placed into the custody of the Applicant under a Foster Care Agreement.

14. “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”.

Given that the minor was abandoned in the Republic of Kenya at birth I do declare that the child is a Kenyan Citizen by birth.

15. 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)

16. The Subject child was abandoned shortly after his birth. Efforts were made to trace the child’s biological mother. Media notices were placed in the Daily Newspapers but nobody came forward to claim the child. The Assistant Chief of Makuyu Sub-Location indicated that his efforts to trace the childs mother have been unsuccessful. A final police letter dated 22nd January 2018 from the OCS Murang’a Police Station confirms that the childs biological parents/relatives were not traced.

17. The Subject child was abandoned at only 3 days old. He faced an uncertain future in Childrens Homes and other similar institutions. This adoption allows the child the opportunity to be raised in a loving and stable home environment. The child has lived with the Applicants in their home since the year2018. This is the only family the child knows and identifies with. I was able to observe the child online. He was a heathy, cheerful 4 year old who was comfortable sitting on the lap of the 1st Applicant. The Applicants have enrolled the child in school and he is able to express himself well for his age.

18. A home visit was conducted by the Director Childrens Services. The Applicants live in a one bedroomed house in the Pangani area of Nairobi. The house has adequate space and facilities for the child. The Applicants have also employed a nanny to assist in caring for the child.

19. All in all, I find that this adoption serves the best interest of the child. Accordingly I do allow this application and make the following orders:-

(i) The Applicants AMNJAGI and EGN are authorized to adopt the child known as ‘Baby D’.

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

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

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

(5) ANNis appointed as the legal Guardian for the child.

DATED IN NAIROBI THIS 4TH DAY OF FEBRUARY, 2022

........................................

MAUREEN A. ODERO

JUDGE