[2022] KEHC 1914 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

ADOPTION CAUSE NO. E027 OF 2021

IN THE MATTER OF THE CHILDREN ACT, 2001

AND

IN THE MATTER OF TAM – A MINOR

SOM......1ST APPLICANT

MTO.....2ND APPLICANT

JUDGMENT

1. Before this Court is the Originating Summons dated 3rd March 2021 bywhich the Applicants seek the following orders:-

“1. THAT the Applicants be authorized to adopt TAM a minor who is to be known as TMAM and the Registrar General be directed to enter this adoption into the Register of Adoptions.

2. THAT ROO and EAO be appointed as the legal guardians of the minor.

3. THAT the child be presumed to have been born in Kenya.”

2. The Application was supported by the statement of even date made by the two Applicants. The Application was canvassed by way of oral evidence on the online platform.

3. The Applicants SOMandMTOare a married couple who got married to each other in year2017. Their union is blessed with one child a son who was born on 15th April 2018. The 1st Applicant has two daughters from a previous relationship whilst the Subject child is the daughter of the 2nd Applicant from a previous relationship.

4. The couple told the court that they have lived with and raised the subject child as their daughter since they got married. They now seek to adopt the child in order to formalize the relationship and to enable her adopt the 1st Applicants name as her surname.

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 6th October 2006. She is now aged 15 ½ years old way above the six (6) week age limit provided for in law. BUCKNER KENYA ADOPTION SERVICESwho are a registered adoption agency have annexed to their report the original copy of their certificate serial Number xxx dated 5th February 2021 declaring the child Free For Adoption. I am therefore satisfied that the legal prerequisites for an adoption order have been met.

7. The duty of this court is to evaluate the material before it to determine whether the Applicants are suitable adoptive parents for the child. The Applicants are both Kenyan citizens. They have annexed to the summons copies of their National Identity Cards (Pages 1-4 of the Affidavit in support).

8. As stated earlier the Applicants are a married couple who got married under customary law in the year2016 and later solemnized their union on 15th July 2017 as evidenced by the copy of their marriage certificate Serial Number xxxx which is annexed at Page 5 of the summons. Their union resulted in the birth of one child a son born in April 2018. The Subject child is the biological child of the 2nd Applicant who bore her at the of 21 years in October 2006 long before she met the 1st Applicant.

9. The Applicants are both lawyers by profession. They currently partner in running a law firm known as MNO Advocates LLP. They make a good living from their law practice and have annexed copies of their Bank Statements from GT Bank as proof of their Finances. (Pages 21-25 of summons). Additionally, the Applicants own land in [particulars withheld], Busia County which is their rural home. I am satisfied that the Applicants are financially secure and are well able to provide for the needs of the child in question.

10. The Applicants are both Christians and have been raising the child in the Christian Faith. At Page 19 of the summons is a recommendation letter written by PSMof[particulars withheld] Church where the Applicants Worship. The Applicants have also annexed letters of recommendation from family and friends (Pages 18and20 of summons) confirming that the Applicants have since their marriage lived with and raised the Subject child as their own.

11. The Applicant have both annexed Clearance Reports issued by the National Police Service (Pages 30-31 of the summons) confirming that neither has a criminal record. They have appointed the 2nd Applicants brother OMO and his wife EAO as the legal Guardians for the child. The two legal Guardians have both signed a consent dated 3rd March 2021 indicating their willingness to act as legal Guardians for the child (Pages 39-41 of the summons). Based on the material available I am satisfied that the Applicants are suitable Adoptive parents.

12. The Subject child is a girl child who was born to the 2nd Applicant in Changamwe, Mombasa County on 6th October 2006. Her birth Certificate Number E No xxxxxis annexed at Page 43 of the summons. At the time the 2nd Applicant who was aged 21 years was a University student. The Childs biological father who was a fellow student vanished during the pregnancy. The 2nd Applicant bore the child and with the support of her parents raised the child as a single mother. The 2nd Applicant told the court that the childs father has played no role whatsoever in her life and his name does not even appear in the childs Birth Certificate.

13. A father who has never seen or interacted with his child for 15 years has definitely abandoned said child. The 2nd Applicant also stated that she has had no communication or interaction with the childs father who abandoned her during her pregnancy. Given that the father has abandoned the child, I waive the requirement for consent of the childs biological father in line with Section 158(4)of theChildren Act, 2001.

14. 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)

15. This is a kinship adoption. The subject child is the biological child of the 2nd Applicant. From the date of their marriage the Applicants have taken the child into their home and have raised her as their own together with the couples biological son and the 1st Applicants two (2) daughters from his previous family. It is obvious that this is the only family the child knows. The child ought to be allowed to remain under the care of her mother who bore her.

16. I was able to interview the child online. She was an engaging an articulate young lady. The child confirmed to the court that she knew the meaning of adoption and indicated her desire to be adopted by the Applicants who she referred to as her parents.

17. Section 76(3) (a)of theChildren Act which 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)

18. I have perused the reports prepared by the Guardian Ad Litem, the Adoption Agency and the Director Childrens Services. All three reports were positive and recommended the Adoption. A home visit was conducted on 26th July 2021. The Applicants reside in a five bedroomed house in Lavington. The house is within a gated community in an up-market area of Nairobi. The area is well served with schools, shopping malls and hospitals. The child lives in a secure and stable environment.

19. Based on the foregoing 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 SOM and MTO are authorized to adopt the child known as TAM.

(2) Upon Adoption the child will be known as TMAM.

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

(4) ROO and EAO are appointed as the legal Guardians for the child.

DATED IN NAIROBI THIS 4TH DAY OF FEBRUARY, 2022

…………………………………..

MAUREEN A. ODERO

JUDGE