[2020] KEHC 2408 (KLR)
The court found that special circumstances existed to justify the adoption of the male minor by the sole female applicant, as she is the maternal aunt of the child, both biological parents are deceased, and the applicant has demonstrated the capacity and willingness to provide for the child's welfare and education....
Source-derived case information.
- Citation
- [2020] KEHC 2408 (KLR)
- Parties
- Applicant: TWM; Respondent: AMM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 52 of 2017
- Procedural Posture
- Adoption Cause / Ruling
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Adoption of Minors, Guardianship Appointment, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
TWM
Applicant
AMM
Respondent
Procedural Posture
Adoption Cause / Ruling
Legal Issues
- 1 Whether a sole female applicant can adopt a male child under Kenyan law given the special circumstances of the case.
- 2 Whether the adoption is in the best interests of the minor.
- 3 Whether the minor should be presumed a Kenyan citizen and issued a Kenyan passport.
Ratio Decidendi
The court found that special circumstances existed to justify the adoption of the male minor by the sole female applicant, as she is the maternal aunt of the child, both biological parents are deceased, and the applicant has demonstrated the capacity and willingness to provide for the child's welfare and education. The court was satisfied that the adoption would serve the best interests of the child, who is currently living with the applicant's sister and is to be relocated to the United States for better opportunities. The recommendations of the guardian ad litem and the Director of Children Services further supported the conclusion that the adoption is appropriate and in the child's...
Court Disposition
application allowed
Orders
- The applicant is authorized to legally adopt BABY SN, who will be known as SN.
- The minor is presumed to be a Kenyan citizen.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ADOPTION CAUSE NO. 52 OF 2017
IN THE MATTER OF BABY SN
TWM…………….…………………………….APPLICANT
RULING
1. Before me is an Originating Summons dated 6th April 2017 brought by TWM for the adoption of SN, a minor (child).
2. The Originating Summons was filed under Section 154, 156, 158, 159(1), 159(4) and 160 of the Children Act 2001, and the prayers are as follows –
1. (spent)
2. (spent)
3. That the applicant be authorized to legally adopt BABY SN (herein referred to for all common interest and purposes as the minor) who will be known as SN.
4. That the infant herein be presumed to be a Kenyan citizen.
5. That AMM be appointed legal guardian to the minor.
6. That the Registrar General do make the appropriate entry of BABY SN the minor herein in the Adopted Children’s Register.
7. That the Director of Immigration do issue the minor with a Kenyan passport.
3. The Originating Summons was filed with a STATEMENT of the applicant dated 6th April 2017 in which it was averred that the applicant was born in Muranga Kenya in 1962, that the minor BABY SN was born on 10th April 2004 to a sister of the applicant and PKN both of whom were now deceased, that the applicant was now a [particulars withheld] working in the United States of America with two daughters and one son of her own, and that she had adequate resources to cater for the minor and her own children, and that the applicant was devoted to make the minor herein achieve his goals and change his life.
4. The Originating Summons was also filed with an affidavit sworn by the applicant annexing several documents explaining the circumstances leading to the application and the relationship between the applicant and the minor.
5. This court on 27th July 2017 appointed JM as the guardian ad litem, and ordered the Director of Children Services to file their report on the suitability of the applicant to adopt the minor.
6. The guardian ad litem JM and the Director of Children Services filed their respective reports dated 11th October 2017 and 24th February 2020 respectively, and both reports recommended that the proposed adoption of the minor was in his best interests.
7. This is an application for the adoption of a male child by a single female applicant, as the applicant is a single mother who does not intend to marry. In this regard, Section 158(2)(b) of the Children Act provides as follows –
“158(2) 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) ….
(b) a sole female applicant in respect of a male child.”
8. Having considered the facts and circumstances disclosed to me in this matter, I note that this is a proposed adoption of a minor male child by a sister of the biological mother of the minor. Both the biological mother and father of the child are now deceased, and the main driving motive of the applicant in adopting the minor is to formally provide for the proper upbringing and education of this orphaned child. I note that the minor is now living with a sister of the applicant in Nairobi and that the applicant wants the minor to hereafter proceed to the United States of America after the adoption.
9. In the circumstances of this case as explained in paragraph (8) above, I am satisfied that there exist special circumstances in which this court should allow the adoption of the male minor by the single female applicant, since the applicant is a sister of the mother of the child, and has children of her own, and wants to formally care and educate the child, who is her nephew.
10. I thus allow the application for adoption and order as follows –
1. The applicant be and is hereby authorized to legally adopt BABY SN (herein referred to for all common interests and purposes as the minor) who will be known as SN.
2. That the minor herein be and is hereby presumed to be a Kenyan citizen.
3. That AMM be and is hereby appointed as legal guardian to the minor.
4. That the Registrar General do make the appropriate entry for BABY SN the minor herein in the Adopted Children’s Register.
5. That the Director of Immigration of Kenya do issue the minor with a Kenyan passport.
Dated and delivered at Nairobi this 14th day of October, 2020.
George Dulu
JUDGE
Delivered virtually due to the COVID-19 pandemic and Kenya Ministry of Health Guidelines.