[2016] KEHC 313 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO.210 OF 2014

IN THE MATTER OF THE CHILDREN ACT NUMBER 8 OF 2001

AND

IN THE MATTER OF AN APPLICATION FOR ADOPTION OF BABY R alias M W (MINOR)

J K M & E K K …………………………..APPLICANTS

JUDGMENT

1. The 1st applicant J K M had applied jointly for the adoption of baby R with his wife E K K. However, the wife passed on after a short illness on 17th January 2016 before the completion of the adoption legal process. The applicants were seeking to be authorized to adopt baby R alias M W (Minor). They also sought that upon making the adoption the child be called G G K. They also seek that their brother S K Mbe appointed the legal Guardian of the child.

2. The 2nd applicant unfortunately died on 17th January 2016 before the hearing and determination of this application. However, the 1st applicant via his application dated 29th February 2016 indicates that he is ready and willing to proceed with the adoption of the minor. The applicants had been married for 23 years but had not been blessed with a child of their own due to medical related complication. The applicant is a banker by profession and has adequate resources to cater to the minor. Since they took up the child they have fitted well and developed a strong child parent relationship and one can hardly tell that she is not their biological child.

3. Baby R was born on 1st May 2011 at Kiambu District Hospital. The mother of the child M W M abandoned the child on the following day after delivery and the matter was reported to Kiambu Police station and recorded as O.B. [Particulars withheld]. The police in their letter dated 7/10/2011 stated that no relative of the child had been traced. The child remained in hospital until 10/05/2011and was referred to Child Welfare Society of Kenya for alternative care who rescued the child and placed her with CWSK Mama Ngina Kenyatta Children’s Home for care and protection. The child was committed to the said home on 2nd July 2012 vide care and protection no.223 of 2012. The child was declared free for adoption by Child Welfare Society of Kenya on 13th June 2014 under certificate no. [Particulars withheld].

4. The Department of Children’s Services filed their report on 23rd June 2015. The investigator observed that the couple is sociable and economically endowed to take care of the child. The investigator however, points out that the child’s history is not documented stating that the child that was released to Child Welfare was R M W who is said to have been abandoned at Kiambu District Hospital on 20/4/2011. Whilst the baby in this matter is Baby R who was born on 1/5/2011 adding that the child was declared free for adoption many months later after placement which is contrary to Section 156 of the Children’s Act.

5. The 1st applicant had applied jointly for the adoption of baby R with his wife E K K. However, the wife passed on after a short illness on 17th January 2016 before the completion of the adoption legal process. In view of the new developments the court ordered the Child Welfare Society of Kenya to conduct fresh investigations and file an addendum report. It was observed that the applicant had bonded well with the child and had grown to love him so much and calls him baba. The child was placed with the applicant when she was 1 year 7months and she is now 4 years 10months. The applicant seems to be coping well with the demise of his wife. The minor looks healthy and the environment is conducive for a child to grow. The prospective adoptive parent demonstrated commitment to by seeking to finalize the process. There is a bond between the prospective parent and the child and has also adjusted his schedules to allocate more time to the child. The prospective adoptive parent is a Manager at [Particulars withheld] Bank and earns good salary to prove for the child. There is also a resident nanny to take care of the child. Article 53(1) of the constitution entitles every child to parental care and protection and which the applicant herein is capable of providing to the child. He also states if the said application is looked at as an application by a sole male it would go contrary to Section 4(2) of the children’s Act.

6. In regards to the issue raised on mistaken Identity the children welfare Society of Kenya in their addendum report dated 1st September 2015. The Child Welfare society confirms that on 10th May 2011 they received 3 children R H W alias Baby M W, Baby R M W and Baby R W. In the said report it attached documents seeking to clarify the issue. In regards to placement before declaration of being free for adoption they stated that the same was done pursuant to a foster agreement dated 11th January 2011. It added that it was not mandatory to declare a child free for adoption before any foster placement. Adding that there were efforts made to try and trace the child’s parents and various follow ups were made to the police station but all efforts have proved fruitless as evidenced by the police report dated 13th January 2013. It further states that it is imperative to place the child into a place of safety within 48hours.

7. I have perused the annexed documents and the same support the addendum report by the Child Welfare Society dated 3 March 2016 and 1st September 2016. This is a local adoption and I find that the applicant has complied with the requirements for adoption under the law. The applicant began these adoption proceedings together with his wife who unfortunately died on 17th January 2016 before the conclusion of these adoption proceedings. I therefore find that this is a special circumstance that allows this court to grant the application in view of the provision of Section 158 (2) which provides that, “ An adoption order shall not be made in favour of the following persons unless the court is satisfied that there are special circumstances that justify the making of an adoption order—

A sole male applicant in respect of a female child;”

This court has further considered the best interest of the child the proposed adoptive parent seeks to adopt as provided under Article 53 (2) which provides that, “A child’s best interests are of paramount importance in every matter concerning the child.”

8. This court finds that it would be in the best interest of the child to be adopted by the applicant. The Applicant J K Mis hereby allowed to adopt baby and he shall henceforth be called G G K. S K M a brother to the 1st applicant shall be the legal Guardian of the child should misfortune befall the applicant. I allow the application for adoption. I direct the Registrar General to enter this order in the adoption register. All the final documents relating to the child shall also bear the name of the 2nd applicant E K K. The child was born in Kenya and is therefore a Kenyan by birth and is entitled all the rights that accrue to Kenyan citizens under the Kenya Constitution 2010 and the Kenya citizenship and Immigration Act. I hereby discharge the Guardian ad litem. It is so order.

Dated Signed and delivered this3rdDay ofNovember2016.

R. E. OUGO

JUDGE

In the presence of:

………………For the Applicants

Ms. Charity Court Clerk