[2021] KEHC 12623 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

ADOPTION CAUSE NO. 147 OF 2018

IN THE MATTER OF THE CHILDREN’S ACT NO. 8

OF 2001 AND THE ADOPTION RULES

AND

IN THE MATTER OF ADOPTION OF BABY SB (MINOR)

CKK ................................ 1ST APPLICANT

MAR ............................... 2ND APPLICANT

JUDGMENT

(1) Before this Court is the Originating Summons dated 11th October 2018by which CKK (the 1st Applicant herein) and MAR (the 2nd Applicant) seek the following orders:-

1. THAT the Applicants be authorized to adopt BABY SB, to be known as ENK.

2. THAT BAR be appointed as the legal guardian of the child in the event of the death or incapacity of the Applicants before she is of full age and fully self reliant.

3. THAT the Registrar-General be directed to enter in the adopted children register an entry recording the adoption.

4. THAT the child be presumed to be a Kenyan citizen by birth.

5. THAT the Director of Immigration be authorized to issue the child with a Kenyan passport.

6. THAT the Court be pleased to make any further orders it deems necessary.

(2) The Summons was disposed of by way of viva voce evidence and the witnesses testified before Court on the on-line platform on 3rd December 2020.

(3) PW1 CKK and PW2 MAR (the Applicants) both of Kenyan nationality are a married couple who solemnized their union at John the Evangelist Church in Nairobi West on 7th December 2013. Annexed at pages 22-24 of the Summons are copies of the National Identity Card for each Applicant and at page 25 is a copy of their Marriage Certificate Serial No. 177640. The Applicants have three (3) biological children (all minors) namely:-

(i) EK – born on 4th September 2008 in Texas, USA

(ii) EW – born on 12th September 2014 born at the Nairobi Women’s Hospital

(iii) EA born on 25th January 2016, born at the Karen Hospital

The Birth Certificates of the three (3) children have been annexed to the Summons.

(4) The Applicants both reside and work in Kenya although the 1st Applicant regularly travels to work in the USA where he runs businesses. The 2nd applicant is a business lady who runs her own Cleaning Company. The couple resides with all their children (including the prospective adoptive child) in a rented house at Karen End Estate. They profess the Christian faith.

(5) The Applicants told the Court that although they already have three (3) biological children they desire to adopt the subject child as a way of giving back to Society by providing the child with a stable loving home. They indicate that the child has been under their care through a Fostering Arrangement signed on 16th January 2018. That the child has bonded well with the entire family and has a loving relationship with the couple’s three (3) children. The Applicants state that the extended family is receptive to their plans to adopt the child and have already welcomed the child as a member of the family. Both the 1st and 2nd Applicants confirm that they fully understand the legal consequences of an adoption order and confirm that they will accord to the child all the rights and obligations due to a biological child including the right to inherit.

(6) The child in question is a girl-child who is presumed to have been born on or about 21st April 2017. On 24th April 2017, the child was found abandoned naked and cold by a watchman in the Kwambira area of Limuru. After being rescued the matter was reported at Tigoni Police Station vide OB No. 13 of 24th April 2017.

(7) Thereafter the Limuru Children’s Court committed the child to the Limuru Children’s Centre for care and protection vide Protection and Care Case Number 19 of 2017 of 24th April 2017. So far no person has come forward to claim the child and efforts by Police to trace the biological parents and/or relatives of the child have not borne any fruit. Accordingly the Kenya Children’s Home a Registered Adoption Agency issued a Certificate Serial No. [Particulars Withheld] declaring the child free for Adoption. The child was then matched with the Applicants and was on 16th January 2018 placed under their care and custody.

(8) PW3 HW was approved by the Court as Guardian ad Litem in this matter on 24th January 2019. She has prepared her Report dated 12th November 2019 recommending the Adoption.

(9) PW4 BR who is the elder sister to the 2nd Applicant confirms that she is ready to stand in as legal guardian for the child, should the need arise. Both PW4 and her husband RW have signed the necessary consents to act as legal guardians.

(10) PW5 MR. EZEKIEL KAMAU is a Children’s Officer. He prepared and filed in Court his Report dated 16th October 2019 recommending the Adoption.

(11) PW6 MR. KAMENJU form the Kenya Children’s Home, the Adoption Agency also filed a Report dated 21st November 2019 recommending the Adoption.

ANALYSIS AND DETERMINATION

(12) The Adoption of children in Kenya is governed by The Children Act, Cap 141 Laws of Kenya. Section 159(1) of the said Actprovides as follows:-

“159(1) No arrangement shall be commenced for the adoption of the child unless the child is at least six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the rules prescribed in that behalf.”

(13) The subject child having been born on or about 21st April 2017 is now about 31/2 years old well above the six (6) week age limit provided for by the law. Attached to the Report filed on 21st November 2020 by Kenya Children’s Homes Adoption Society is an original copy of a Certificate Serial Number1391 dated 3rd January 2018 declaring the subject child free for Adoption. Accordingly I am satisfied that all the prerequisite requirements for an order of Adoption have been met.

(14) This Court is required to assess and determine the suitability of the Applicants to adopt the subject child. As stated earlier the Applicants are a couple who have been in a stable legal marital union for the past seven (7) years. They profess the Christian faith. They are both Kenyan citizens. The Applicants have three (3) biological minor children who they have been raising and thus they are not new to parenting. Undoubtedly they are both well aware of the joys and challenges that come with raising a young child.

(15) The Applicants are both in stable business and have a net income of roughly Kshs. 500,000/- per month which is quite sufficient to provide for the needs of their children. A visit to the couple’s home by the Children’s Officer revealed that they live in a spacious five-bedroomed house in its own compound located at the West End Estate in Karen. The Children Officer found (and I do agree) that the house provide a conducive environment for the growth and development of the child.

(16) The Applicants have annexed to the Summons copies of their Medical Reports (“CM-9”)indicating that they are both in sound physical and mental health. They have also annexed copies of Good Conduct Certificates (“CM-11”)issued by the Kenya Police indicating that neither has any criminal antecedents. There is annexed a letter of consent from the proposed Legal Guardian (“CM-12”) BR indicating her willingness to take up parental responsibility for the child in the event of the incapacitation of the Applicants. Finally both Applicants assured this Court that they fully comprehend the legal implications of an adoption order and that they are willing to accord to the child all the rights of a biological child upto and including the right of inheritance. Based on the foregoing I am satisfied that the 1st and 2nd Applicants are suitable adoptive parents for this child.

(17) Section 4(2) of the Children Act provides as follows:-

“(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 interests of the child shall be a primary consideration.” [own emphasis]

(18) The subject child is a girl-child who was abandoned shortly after birth. To date no person (s) has come forward to claim the said child. By way of a Final Letter dated 7th December 2017 the OCS Tigoni Police Station confirmed that all efforts to trace the biological parents/relatives of the child have been futile. As such there is no person from whom consent for this Adoption can be sought and/or obtained. Accordingly I dispense with any need for consent in terms of Section 159(1)(a) Children Act.

(19) Article 44 of the Constitution of Kenya, 2010 which deals 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.”

The subject child was found abandoned in Kenya. She is less than eight (8) years old. Accordingly said child is presumed to be a citizen of Kenya by birth.

(20) This therefore is a child who faced an uncertain future being raised in Children’s Homes. This adoption gives the child the opportunity to grow up in a loving, stable home environment surrounded by loving siblings and relatives. The child has now lived with the Applicants and the family for over three (3) years. Undoubtedly she has bonded with them. I was able to observe the child on the online platform. She was able to answer rudimentary questions and seemed happy, confident and carefree in the company of the Applicants. In my view this adoption would certainly serve the best interests of the child.

(21) Finally I do allow this application for Adoption and I make the following orders:-

(1) The Applicants CKK and MAR, are hereby authorized to adopt Baby SB hereinafter to be known as ESNK.

(2) BAR is hereby appointed as the Legal Guardian of the child.

(3) The subject child is presumed to be a Kenyan citizen by birth.

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

(5) The Director of Immigration to provide the child with a Passport upon fulfillment of all legal requirements.

(6) No orders on costs.

Dated in Nairobithis 29TH day of January, 2021.

…………………………………..

MAUREEN A. ODERO

JUDGE