[2023] KEHC 25677 (KLR)

In re SN aka JGOT (Baby) (Adoption Cause E111 of 2023) [2023] KEHC 25677 (KLR) (Family) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25677 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E111 of 2023

PM Nyaundi, J

November 3, 2023

IN THE MATTER OF THE CHILDREN’S ACT ,2022 IN THE MATTER OF ADOPTION OF BABY SN AKA JGOT AND IN THE MATTER OF AN APPLICATION FOR ADOPTION

In the matter of

AOO

1st Applicant

MNO

2nd Applicant

Judgment

1. The Applicants, AOO and NNO vide Originating Summons dated 14th June 2023 have made an application for the adoption of Baby SN AKA JGOT the child herein. They are married have attached a copy of marriage certificate serial number xxxxx.They do not have biological child. They wish to adopt the child with intention to grow their family.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 19th of October 2023.

3. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The 1st applicant works as a laboratory Manager at [Particulars withheld], the second applicant is a lecturer at [Particulars withheld] University. They have had custody of the child since 10th March 2023. They reside in Langa’ta, Nairobi County. They fully understand the consequences of an adoption order.

4. The child was presumably born on 23rd May 2022 at Kabiria Dagoretti South Sub County. The child was found abandoned near St. Jude Catholic Church on Monday 23rd May 2022 by a Good Samaritan by the name Jotham Lopez of mobile No 0758xxxxxx and ID No.xxxxxxxxx who alerted the neighbour named Mama Dan and she accompanied him to Riruta police station.

5. The matter was recorded at Riruta Police Station vide OB xx/23/05/2022. The matter was later transferred to Mutuini Police Station for jurisdiction purposes and was booked vide Occurrence Book Number xx/24/05/2022. The police took the baby to The Nairobi Women’s Hospital for medical examination and temporarily placed the minor at Shipra Rescue Centre awaiting further directions.

6. The Sub County Children’s Officer-Dagoretti was involved and sought a vacancy at New Life Home Trust for care and protection and it was availed. The minor was admitted at the said home on 24th May 2022 as a child in need of care and protection.

7. The minor was committed to New Life Home Trust for care and protection at the Nairobi Children’s Court vide Protection and Care Case No. E564 of 2022 on 13th January 2023. On 6th February 2023 the Mutuini Police Station reported that their effort to trace the kindred of the child has been futile.

8. Peter Ndotono, an Adoption Programme Manager at Kenya Children’s Homes Adoption society confirmed that prior to the hearing of the adoption application, Kenya Children’s Homes prepared and filed a report dated 20th September 2023 and issued a certificate serial No. xxx declaring the child free for adoption. The Court appointed a Guardian Ad litem Ms EM.

9. The Guardian Ad Litem, Ms EM was present in Court and presented her report dated 16th August 2023. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She recommends that the Applicants be allowed to adopt the Baby.

10. An officer of the Department of Children Services, Winfred Ikinya was present a report dated 18th August 2023, the report was prepared by Nyaranga Odundo and counter signed by Nancy Waswa. The report established that the child is presumed to have been born on 23rd May 2022.

11. On 24th May 2023 she was found abandoned near St. Jude Catholic Church in Kabiria by a Good Samaritan named Jotham Lopez of ID number xxxxxxxx. He reported the matter to Riruta Police Station where it was recorder vide OB number xx/23/05/2022. The baby was taken to Nairobi Women’s Hospital for medical examination and then referred to Shipra Rescue Centre for temporary care and protection. Riruta Police Station referred the matter to Mutuini Police Station due to the jurisdiction in which it occurred and there it was booked under OB number xx/24/05/2022.

12. The Report further documents that the matter was brought to the attention of the Sub County Children’s Officer in Dagoretti who sought a vacancy at New Life Home Trust where the minor was admitted on 24th May 2022. The minor was committed to the care of the same home on 13 January 2023 vide protection and care case number MCP 7& CCO/E564/2024 for a period of three months. The child remained at the home until she was placed with the Applicants on 10th March 2023.

13. The proposed Legal Guardian HOO attended court and confirmed she is willing to take up the role of legal guardian. She is the 2nd Applicant’s sister.

14. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.(1)The Court may make an adoption order on application by—a.A sole applicant; orb.Two spouse jointly(2)The Court shall not make an adoption order in any case unless—a.the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; andb.The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

15. The Applicants are aged 43 years and 44 years respectively.

16. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child

17. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child.(1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies—(a)the best interests of the child shall be the primary consideration;(b)The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is made the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

18. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated 14th June 2023 and order as follows:i.The Applicants AOO and MNO be allowed to adopt Baby SN AKA JGOT.ii.The Child to be known as JGOT.iii.The Child be presumed to be a Kenyan citizen by birth born on 23rd May 2022 at Dagoretti, Nairobi County.iv.HOO is hereby appointed as legal guardian of Childv.The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.vi.The Director Immigration is authorized to issue the child with a Kenyan passportvii.The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 3rd DAY OF NOVEMBER,2023. P. NYAUNDIJUDGEIn the presence of:Ms Owiti for ApplicantSylvia Court Assistant