[2023] KEHC 25240 (KLR)

In re RD aka MN (Baby) (Adoption Cause E009 of 2023) [2023] KEHC 25240 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25240 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E009 of 2023

MW Muigai, J

November 8, 2023

IN THE MATTER OF CHILDREN ACT 2022 AND IN THE MATTER OF BABY RD a.k.a MN JMP..................................1ST APPLICANT EMM .......................2ND APPLICANT

In the matter of

JMP

1st Applicant

EMM

2nd Applicant

Judgment

1. The Applicants, JMP – ID. Number */*/*/*/* and EMM - ID. Number */*/*/*/* (“the Applicants”) sought by their application to be allowed by this Court to adopt Baby RD (hereafter “the child”).

2. Vide Originating Summons application dated 22nd March, 2023 the Applicants sought among other orders; that the Applicants herein JMP and EMM be authorized to adopt baby RD a minor who is to be known as RMM; that PKM and LMM be appointed as the Legal Guardians of the child; that the child be presumed to be born in Kenya. The Applicants herein further sought orders; that Benard Mutisya be appointed as the Guardian Ad Litem for Baby RD and that this Court directs the Director of Children’s Services to compile a requisite Report on the Applicants fitness to adopt the Baby RD under the Children’s Act. Benard Mutisya of ID No.3502820 was appointed as the Guardian Ad Litem on 17/05/2023.

3. The child (RD) who is the subject of the present adoption proceedings was born on 22nd December, 2021 at Thika level 5 Hospital. The Child’s biological mother one MN of IP No.*/*/*/*/* had been admitted at the facility on the same date that she delivered the baby. The baby was born prematurely at 37 weeks and admitted at the New born unit for specialized care. The child was later found having been abandoned by the mother on the evening of 27th January, 2022.

4. The biological Mother (MN) had given out the next of kin contact name and telephone number of one LL (0743528757). The said LL was contacted by the Hospital severally and she claimed that the baby’s mother was not familiar to her. The abandonment was reported at Thika Police Station vide OB No. 50/2/2/2022. On 25th March, 2022 the Thika West Sub County Children’s Officer requested that the baby be committed to New Life Home Trust for care and protection. Baby RD was discharged from the Thika Level 5 Hospital on 29th March 2022 and admitted at New Life Home Trust for care and Protection on the same date. Baby RD was committed to New Life Home through the Resident Magistrate Court in Thika for care and protection vide Care and Protection No. MCP/CCO/E019/2022. On 30th August 2020, Thika Police Station issued a second police letter indicating that their efforts to trace the mother or kindred have been fruitless.

5. On 7th September, 2022 Buckner Kenya Adoption Services made effort to contact the next of kin one LL via Phone No. 0743358757 but she stated that she was not familiar to the said MN (R’s mother). Baby RD stayed at the New life Home Trust until 14th October 2022 when he was placed under the care and control of Mr. & Mrs JM (the applicants herein). The Buckner Kenya Adoption Society declared the child Free for Adoption on 9th September, 2022 vide Certificate Declaring Child Free for Adoption Serial No.0587.

6. The following documents were availed from Buckner Kenya Adoption Society for baby RD1. Initial Police Letter from Thika Police Station dated 2nd February, 2022 and OB. No.50/2/2/2022. 2.Final Police letter from Thika Police station dated 30th August, 2022. 3.Home Admission Form4. Discharge Form5. Letters from Thika – West Sub-County Children’s Officer to Chief Magistrate Court Thika Law Courts6. Letters from Thika Level 5 Hospital7. Committal Order8. Report to declare child free for adoption9. Certificate of declaring a child free for adoption Serial No.0587.

7. The Applicants herein JMP and EMM are residents of Kangundo within Machakos County. They are husband and wife - married on 9th January, 2016 as per attached copy of marriage certificate Serial Number */*/*/*/*/*. The Applicants both Pastors of ABC Church. The Applicants annexed the following documents in support of their application; Applicants copies of Identification cards

Certificate of Marriage

Medical Reports for both Applicants

Recommendation letters from family, friends and the church

Copy of Applicants Bank Statement

Copies of the Applicants payslips

Police clearance Certificates for both Applicants

Legal Guardians letter of Consent and their copies of IDs

8. Pursuant to Section 186 of the Children Act 2022 of the Children Act, Buckner Kenya Adoption Service, the relevant Adoption Society, prepared and filed in Court a favorable report in respect of the proposed adoption of the child by the Applicants.

9. The Guardian Ad Litem, Benard Mutisya also filed the statutory Report in which he noted that the proposed adoption of the child by the Applicants would be in the best interests of the child.

10. The Buckner Kenya Adoption Services filed their report dated 10th July, 2023. Ms Irene Ogutu appeared in Court on 13th July, 2023 in respect of this Adoption. She stated that the child was declared Free for adoption by Buckner Kenya Adoption Services on 9/09/2022 vide Certificate Declaring child free for Adoption Serial No.0587. The Buckner Kenya Adoption Services in a Case Committee held on 27/04/2022 assessed the Applicants application and were satisfied that the Applicants were fit to adopt a child of their preferred age and sex.

11. According to the Report the Applicants made a joint adoption application to Buckner Kenya Adoption Services on 21/10/2021 and it was their 1st adoption. The Applicants applied to be placed with a boy child aged less than 1 year. Relevant Interviews were conducted, a home assessment carried out as well as the pre-adoption counselling.

12. The Applicants were found eligible and were placed with the minor on 14/10/2022. The applicants were married on 9/01/2016 vide Certificate of Marriage serial No.*/*/*/*/*. The Applicants have not been blessed with a biological child. The Applicants lives in their own 3 bedroomed house at Kangundo. The Applicants also have another 3 bedroomed house at Kikima Town, Mbooni ABC Church offered by the church and have all utilities catered for by the church. The Applicants are lead Pastors heading 10 churches at Kyangoma Pastorate and are affiliated with Africa Brotherhood Church (ABC). They are of good health vide Doctors Report dated 15/08/2021. The Applicants motivation for adoption is to share their joy and love with a child and exercise parental responsibilities. The Applicants extended family is supportive of the Adoption. The Applicants have appointed PKM and LM as the legal Guardians. PKM is a brother in Law and brother to the 1st and 2nd Applicants respectively. The Applicants are confirmed to be in good general heath (medical reports are attached), they are in stable employment and do not have any criminal record.

13. The Applicants have good recommendations from the Rev. Canon M. Nzyoki of Africa Brotherhood Church, Alexander M. Musembi the Chief Kangundo Location and Bernard Kinyolo a friend of the Applicants. The Agency recommended the Adoption.

14. The Director of Children’s Services filed the report in respect of the proposed adoption of the child by the Applicants and this report was similarly in favor of the proposed adoption.

15. The Director of Children Services filed their Report dated 09/06/2023. Emily Kimanzi the Machakos Sub County Children Officer appeared in Court on 13/07/2023 in respect of the proposed adoption of the child by the Applicants. She told the Court that she visited the Applicants home on 31/05/2023 and was satisfied that they are capable of taking care of the child and observed that the child (RD) is well taken care of as the applicants are financially and economically stable.

16. According to the Report the Applicants live with their parents who are very supportive of the process and are helping in raising of the minor. The Applicants have a 3 bedroomed house in a 2 acre piece of land which they inherited from their parents. They own several pieces of land as well as shares in African Brotherhood Empowerment Sacco. The extended family is supportive of the adoption. They recommended the adoption.

17. The Guardian Ad Litem, Bernard Mutisya filed his Report dated 12th July, 2023 in support of these Adoption proceedings. He stated that he is in fellowship at ABC church Kyangoma. He visited the Applicants’ home and observed that the child interacted well with other children in the community and was well received by church members. He stated that he had visited the Applicants on several occasions and observed that the child has bonded well with the Applicants. The minor is happy and feels as part of the family. The Applicants do not have a child of their own and have been yearning to be called parents and also wanted someone to inherit from them. The Applicants immediate and extended family are in support of the Adoption and have fully welcomed the minor as part of the family. The Guardian Ad litem recommended the adoption.

18. The Legal Guardians PKM and LMM of Identification Card Numbers */*/*/*/*/*/* and */*/*/*/*/* respectively are a married couple (PKM is a brother to the 2nd Applicant) they filed their consent sworn on 22/03/2023.

19. All the Statutory Reports that have been filed in respect of the proposed adoption of the child by the Applicants have recommended that this Court allows the adoption of the child. This Court has evaluated the facts of this adoption. This is a local adoption. It is evident that the Applicants has fulfilled all the legal requirements relative to the adoption of the child.

20. The home visits by the Guardian ad litem, the Adoption Society Representative and the Director of the Children’s Services established that the Applicants are financially and socially stable and have emotional capability to provide for the upkeep and education of the child and give parental care. This Court observed the Applicants with the child in Court and it was evident that in the period that the Applicants have had the custody of the child, the child has bonded well. The child considers the Applicants to be his parents.

Disposition1. On the basis of a careful examination of the documents presented before this Court as well as the observations made therein, this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicants. Hence, this Court allows the Applicant’s application.2. The Applicants, JMP and EMM are hereby allowed to adopt Baby RD.3. Henceforth, the child shall be known as RMM.4. The child’s date of birth is 22nd December, 2021 and the place of birth shall be THIKA.5. The child is a Kenyan Citizen by birth and entitled to all rights of a Kenyan citizen.6. PKM and LMM shall be the Legal Guardians of the child should such eventuality arise.7. This Court directs the Registrar General to duly enter this order in the Adoption Register.8. That the Directorate of Children Services to carry out supervision on the said adoption and file a report on the ongoing safety/security of the child within one year of the Adoption in the best interests of the child under Section 8 of Children’s Act 2022. 9.The Guardian ad litem is hereby discharged.It is so ordered.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT AT MACHAKOS THIS 8TH DAY OF NOVEMBER 2023 (PHYSICAL/VIRTUAL CONFERENCE).M. W. MUIGAIJUDGE