[2022] KEHC 11760 (KLR)
The court declined to appoint KMO as guardian ad litem because he does not reside with the applicants or within the area where the child resides, making it unlikely that he could effectively comply with the statutory duties under section 160(2) of the Children Act. The court also noted the lack of clarity regarding...
Source-derived case information.
- Citation
- [2022] KEHC 11760 (KLR)
- Parties
- Applicant: DNA; Applicant: MMN; Respondent: KMO
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 2 of 2021
- Procedural Posture
- Adoption Cause / Ruling on Application for Appointment of Guardian Ad Litem
- Outcome
- application for appointment of KMO as guardian ad litem declined
- Judges
- REA Ougo
- Legal Topics
- Adoption Procedure, Guardian Ad Litem Appointment, Child Welfare, Applicant Residency Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DNA
Applicant
MMN
Applicant
KMO
Respondent
Procedural Posture
Adoption Cause / Ruling on Application for Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether KMO is a suitable guardian ad litem for baby SO in the adoption proceedings.
- 2 Whether the proposed guardian ad litem can comply with the statutory duties under section 160(2) of the Children Act.
Ratio Decidendi
The court declined to appoint KMO as guardian ad litem because he does not reside with the applicants or within the area where the child resides, making it unlikely that he could effectively comply with the statutory duties under section 160(2) of the Children Act. The court also noted the lack of clarity regarding the period the applicants have spent with the minor. These factors led the court to conclude that the proposed guardian ad litem would not be able to safeguard the interests of the child or properly investigate and report on the circumstances of the adoption, as required by law.
Court Disposition
application for appointment of KMO as guardian ad litem declined
Orders
- The application to appoint KMO as guardian ad litem is declined.
Full Case Text
Judgment text and source record
15 paragraphs
In re SO (Baby) & DNA & MMN (Adoption Cause 2 of 2021) [2022] KEHC 11760 (KLR) (12 July 2022) (Ruling)
Neutral citation: [2022] KEHC 11760 (KLR)
Republic of Kenya
In the High Court at Kisii
Adoption Cause 2 of 2021
REA Ougo, J
July 12, 2022
IN THE MATTER OF BABY SO AND DNA & MMN
Ruling
1. Before me is an application by the 1st and 2nd applicants DNA and MMN seeking to have KMO appointed as a guardian ad litem.
2. The applicants are residents of the U.S and occasionally come home Kenya to visit.
3. The child the subject of this adoption proceedings is baby SO. He is said to be 16 years old and is the nephew of the applicants. Little Angels Network, the adoption Agency has declared baby SO free from adoption.
4. The Children’s Act No.8 of 2021 part XII provides for the Adoption process. Section 160 of the Children Act provides for the duties of a Guardian ad litem of a child. Section 160(1) & (2) provides as follows:160. Guardian ad litem for the child(1)For the purposes of any application for an adoption order, the court shall upon the application of the applicant or of its own motion, appoint some guardian ad litem for the child pending the hearing and determination of the adoption application.(2)It shall be the duty of the guardian ad litem to—(a)safeguard the interests of the child pending the determination of the adoption proceedings;(b)investigate and apprise the court as to the circumstances pertinent to the adoption of the child in the prescribed manner;(c)make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child;(d)intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent prescribed by this Act;(e)undertake such duties as the court may from time to time direct or as may be prescribed by the rules made under this Part.(3)Where arrangements for the adoption of any child have been made by an adoption society, neither the society nor any member thereof, shall be appointed guardian ad litem of that child for the purposes of its adoption.(4)The appointment of a guardian ad litem shall expire upon the making of a final order by the court under this Part unless the court, having regard to the interests of the child, extends the period of the appoint me AAA.
5. The proposed guardian ad litem admitted that he does not stay with the applicants nor does he stay within the are the child resides. In my view the applicant will not be able to comply with the provisions of section 160(2) now that he is based in Kenya and the applicants are based in United States of America. Further is not clear the period which the applicants have spent with the minor I therefore decline to grant the orders sought.
DATED, SIGNED AND DELIVERED AT KISII THIS 12TH OF JULY, 2022. R.E. OUGOJUDGEIn the presence of:Applicants AbsentMr. Bitok AbsentMs. Aphline Court Assistant