[2023] KEHC 25675 (KLR)

In re TFB aka MBS (Baby) (Adoption Cause E110 of 2023) [2023] KEHC 25675 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25675 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E110 of 2023

PM Nyaundi, J

November 10, 2023

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001 IN THE MATTER OF ADOPTION OF BABY TFB AKA MBS AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY

In the matter of

DSW

1st Applicant

ENN

2nd Applicant

Judgment

1. The Applicants, DSW AND ENN vide Originating Summons dated 14th June 2023 have made an application for the adoption of baby TFB the child herein. The applicants have been married since 2013 and have attached a copy of marriage certificate number 952573.

2. They have one biological child (JS). They wish to expand their family as well as take care of a needy child, provide for him or her as well as give back to the society as they were also supported by others. They also love and adore children and this particular child has added warmth to the home and also given their first son a play mate.

3. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 26th of October 2023.

4. 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 is an agricultural extension officer at Bayer East Africa, and the second applicant is a farmer. They have had custody of the child since 9th March 2023. They reside in Kinoo. They fully understand the consequences of an adoption order.

5. The child was presumably born on 7th June 2021 at Township in Marsabit. The minor was found thrown in a pit latrine in Shauri yako –Marsabit Central next to Habiba Fayo Guyo’s house of mobile No.0722XXX399 on 9th June 2021.

6. The infant was heard crying by people around the neighbourhood who ran to his rescue and tried to figure out how the infant can be saved. The youths from Shauri Moyo location who ran to the scene rescued the infant as one of them went to report the matter at Marsabit central police station.

7. The incident was recorded vide occurrence book No.57/10/06/2021. The community members accompanied the police officers with the child to Marsabit County Referral Hospital for medical check-up where the child was admitted for treatment. The medical social worker from Marsabit County Referral Hospital sought for vacancy of the child at Missionaries of Charity Home of Hope-Marsabit which was availed on 18th June 2021 when the minor was admitted at the said home.

8. After his admission to the Missionaries of Charity Home of Hope- Marsabit he was committed at the said home in the Children’s Court at Marsabit on 25th January 2022 vide protection and case number E001 of 2022. Marsibit central police station confirmed in their office to claim for the minor and their efforts to trace the minor’s kindred bore no fruits. Habiba Fayo Guyo mobile number 0722 XXX 399 was contacted on 1st February 2023 in order to give the current status of the matter and confirmed to have rescued the minor and has never heard anything since then.

9. Prior to the hearing of the adoption application, Kenya Children’s Homes prepared and filed a report dated 4th August 2023 and issued a certificate serial No. 892 declaring the child free for adoption. The Court appointed a Guardian Ad litem EM.

10. The Guardian Ad Litem, EM was present in Court. 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. The child was present in court.

11. An officer of the Department of Children Services, Winfred Ikinya prepared a report dated 16th August 2023 and counter signed by Mary Atati. The report established that the child is presumed to have been born on 7th June 2021. The minor was abandoned in a pit latrine in Shauri Yako area within Marsibit Town on 9th June 2021 after area residents heard cries from the latrine and rescued him.

12. He was taken to Marsibit County Referral Hospital by the police and the matter was recorded vide OB number 57/10/06/2021. After staying in the hospital for about one week, the child was discharged and was admitted at Missionaries of Charity Home of Hope Marsabit for temporary shelter.

13. On request by a children officer, the child was committed to the home by the Children’s Court in Marsabit on 25th January 2022 vide protection and care file number E001/2022. After remaining unclaimed, the child was declared free for adoption by Kenya Children’s Home adoption Society on 15th February 2023 and certificate serialized as 892 issued. He was then placed with the applicants on 9th March 2023 for foster care pending adoption and has been in their care to date.

14. The proposed Legal Guardians JMN and MNN attended court and confirmed they are willing to take up the role of legal guardians. They are 2nd applicant’s brother and sister in law.

15. 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.The Court may make an adoption order on application(1)by-a.A sole applicant; orb.Two spouses 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.

16. The Applicants are aged 39 years and 34 years respectively.

17. 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

18. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child.In all actions concerning children, whether undertaken(1 )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 madethe 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;

19. 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 DSW and ENN be allowed to adopt Baby TFB.II.The Child is to be known as MBS.III.The Child be presumed to be a Kenyan citizen by birth born on 7th June 2021 at Township, Marsabit County.IV.MNW and JMN 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 of 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 10TH DAY OF NOVEMBER, 2023. P NYAUNDIJUDGE