[2022] KEHC 11659 (KLR)

In re TJB, ISSK, JM and FW (Minors) (Miscellaneous Application E006 of 2020) [2022] KEHC 11659 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11659 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application E006 of 2020

TM Matheka, J

May 19, 2022

IN THE MATTER OF TJB, ISK, JM AND FW (MINORS)

In the matter of

IB

1st Applicant

DRIB

2nd Applicant

Ruling

1. The Applicants vide an Originating Summons dated 7th October 2020 brought under Article 14(1) & (2) of the Constitution and Section 9 of the Kenya Citizenship and Immigration Act No.12 of 2011 seek for orders:1. Spent;2. That TJB, ISK, JM and FW be declared Kenyan Citizens by virtue of having been found abandoned within the Republic of Kenya at a tender age; &3. That costs be in the cause.

2. The Application is premised on the grounds on its face and supported by the Affidavit of IB & DRIB sworn on October 7, 2020.

3. They deposed that they are the directors of the Mission in Action, an orphanage caring for the children within Nakuru and which has hosted the minors herein for over a period of three years.

4. They stated that the 1st subject TJB was found abandoned at Nakuru Town and the matter was reported to Nakuru Central Police station and thereafter the child presented to the Children’s Court under P & C Case No. 271 of 2008 on August 14, 2018 which committed him Mission in Action Children’s Home for a period of three years.

5. That the 2nd subject ISK, was found abandoned in 2004 and was fostered by Mr. and Mrs. IB under P & C Case No.206 of 2004 till the age of majority.

6. That the 3rd subject JM was found abandoned in Njoro in 2016 and was brought to court vide P & C No. 270/16 and later committed to Mission in Action Children’s Home while the 4th subject FW was found abandoned in Nakuru Town in 2011 and was committed to Mission in Action Children’s home vide P & C No.931 of 2011.

7. They averred that as the directors of the orphanage Mission in Action located in Ngata Area within Nakuru they wish to travel abroad with the minors herein as it is their usual routine to do so with the minors whom they host at the orphanage.

8. That they have filed this application because when they applied for renewal of the two minors’ passport which have expired the immigration office requested for an order that the minors are presumed to be Kenyan Citizens.

9. They stated that the application is made in good faith and for the sake of the minors herein.

10. On the October 23, 2020the applicants were required to serve Directorate of Children Services. Their report was filed on the June 22, 2021.

11. The Children Officer’s report dated June 21, 2021 confirms that the minors herein are residing at Mission in Action Children’s Charitable Institution.

12. With respect to TJB the Director of Children Services reported that he was born on April 11, 2008 and abandoned in the streets of Nakuru, near a burning dumpsite. He sustained burns and his cries attracted the attention of a passerby. He was rescued and lives in the Charitable Children Institute (CCI) and has a diabetic condition. The report recommended that he be held at the CCI for three years.

13. For ISK, the report stated that he was 17 years old at the time of filing the application, he was an orphan living with his poor aunt, who had voluntarily handed over the child to the applicants in 2003. DCS recommended committal until he completed his secondary education

14. JM was 16 years old at the time of filing the application and in form 1. He was abandoned at birth and had been in the CCI since 2005. DCS recommended committal to the CCI for three years.

15. With respect to FW it was reported that she was born to the late TNN on 5th September 2005, who passed away three months later. The uncle, unable to raise the child approached DCS who placed the child in the CCI, while her siblings remained with him. At the time of the report she had been reunited with her family. DCS recommended her formal release to the family with a commitment by the CCI to continue supporting her.

16. The issue is whether the application is tenable.

17. Article 14 of the Constitution provides for Citizenship by birth. Sub Articles (1) (2) and (4)“(1)A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.(2)Clause (1) applies equally to a person born before the effective date, whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen.(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.”

18. Section 9 of the Kenya Citizenship and Immigration Act, 2011 provides;-“Citizenship by Presumption for foundlings“(1)Any person who finds a child who is or appears to be less than eight years of age, and whose nationality and parents are not known shall present the child to the Government department dealing with matters relating to children and where there is no such department, present the child to the nearest Government department or agency.(2)Where a child is received by a Government department or agency that is not responsible for matters relating to children, the department or agency shall immediately report and present the child to the Government department responsible for matters relating to children.(3)The Government department responsible for matters relating to children shall undertake the necessary investigations including, subject to the rights of the child under any written law, the use of media to determine origin of the child.(4)If the Government department responsible for matters relating to children fails to determine the origin and identity of the child in question, it shall present the child found to the Children’s Courts and take out proceedings for the determination of the age, nationality, residence and the parentage of the child.(5)The court shall after determining the adequacy of the efforts undertaken by the Government department responsible for matters relating to children, issue an order directing that such a child be presumed to be a citizen by birth or any other order that it deems fit to grant.(6)Where the court makes an order that the child be presumed to be a citizen by birth, it may direct the Director to register the child in the register of children presumed citizen by birth.(7)Any person who brings into Kenya, conspires, assists or facilitates the abandoning of a child with the intention of conferring citizenship on the child commits an offence and is liable, on conviction, to a fine not exceeding ten million shillings or imprisonment for a term not exceeding ten years or to both.”

19. Each of the minors has a Certificate of Birth and except for TJ, each other child’s Certificate of Birth indicates who the mother is. None of the children is below the age of 8 years for purposes of the sought after declaration. As at the time the matter was brought to court the youngest was 12 years old hence ineligible for the orders sought as provided for by section 9 of the Kenya Citizenship and Immigration Act, 2011 enacted pursuant to Article 14(4) of the Constitution.

20. In addition, the matter suffered from the non-attendance by the lawyer for the applicants on several occasions when the matter was listed, hence the delay.

21. TJ and FW each had a passport that is now expired in which each was described as a Kenya Citizen, this raises the curious questions how did the applicants obtain these passports if indeed the minors were not deemed to be Kenyans?

22. This brings to question the contention that the immigration office needs an order presuming the minors herein as Kenyan citizens. Nothing has been placed before the court for consideration to support the said allegation. I have carefully considered the application. It seeks one specific order: that the minors herein be declared Kenyan citizens by virtue of having been found abandoned within the Republic of Kenya at a tender age.

23. I have pointed out that the children are already deemed to be Kenyan citizens by virtues of their birth, and the documentation annexed to the application.

24. By virtue of Section 9 of the Kenya Citizenship and Immigration Act No. 12 of 2011 this application ought to have been brought by DCS. Nevertheless the court involved the Directorate of Children Services. They did not make any recommendations with respect to the issue of citizenship of the minors.

25. The upshot is that the application has no merit and the same is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY, 2022MUMBUA T MATHEKAJUDGECA EdnaMaragia Ogaro & Company Advocates