[2023] KEHC 25292 (KLR)

In re TL (Child) (Adoption Cause E056 of 2023) [2023] KEHC 25292 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25292 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E056 of 2023

MA Odero, J

November 10, 2023

IN THE MATTER OF CHILDREN’S ACT NO 8 OF 2001 AND IN THE MATTER OF ADOPTION OF BABY TL (THE CHILD) BY

In the matter of

EMW

Applicant

Judgment

1. Before this court is Originating Summons dated 2nd December 2022 by which the Applicants seek the following orders: -“1. That the Applicant EMW be authorized to adopt the child currently identified as Baby TL.2. That the Child’s date and place of birth be declared to be 6th July 2020 in Nairobi County.3. That the child be presumed to be a Kenyan citizen by birth; and is, consequently, entitled to all rights and benefits in respect thereof.4. That EW be appointed as the legal guardian of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.5. Spent6. That the Registrar-General be directed to make the appropriate entries in the Adopted Children’s Register.7. That the court be pleased to make any further orders it deems necessary.”

2. The application was supported by the statement of even date sworn by the Applicant. The matter was canvassed by way of vive voce evidence on the virtual platform.

3. The Applicant EMW has never been married and she has no biological child. She wishes to expand her family by adopting the Subject child of her own. The Applicant confirms that she understands and accepts the legal implications of an adoption order. She undertakes to accord to the Subject child all the rights due to a biological child including the right to inherit.

Analysis and Determination 5. I have considered the application for adoption, the evidence adduced in support thereof as well as the various reports filed in court.

6. The prerequisites for before an adoption order can be made are set out in section 184 (1) (a) and (b) of the Children’s Act 2022: -“(1)A person shall not commence any arrangements for the adoption of a child unless—(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.”

7. The Subject child was born on 6th July 2020 and is now aged three (3) years old. She is above the six (6) week age limit provided for in law.

8. Buckner Kenya Adoption Services, which is a registered Adoption Agency have annexed to their report a copy of their Certificate Serial Number 0541 dated 18th March 2022 declaring the child Free for Adoption. I am therefore satisfied that all the legal prerequisites for an adoption order have been met.

9. The duty of this court is to analyze the evidence on record to determine whether the Applicants are suitable adoptive parents. The Applicant is a Kenyan citizen as evidenced by the Annexed copy of her National Identity Card. (Annexture ‘EW 4’).

10. The Applicant is gainfully employed. She works at [Particulars Withheld] Hospital in Customer Service. She has annexed to the summons copies of her pay slips (Annexture ‘EW 7A & 7B’) and copies of her bank statements (Annexture ‘EW 8A’). She has also annexed a copy of her land title deed (Annexture ‘EW 8B’) and a car registration certificate (Annexture ‘EW 8C’). All in all, I am satisfied that the Applicants is financially secure.

11. The Applicant is a Christian and intends to raise the child in the Christian faith. She worships at AIC, Plains view. The Applicant was also examined by a doctor and was found to be mentally and physically fit. She has annexed to the summons a copy of a Clearance Certificate issued to her by the Directorate of Criminal Investigations confirming that she has no criminal record (Annexture ‘EW 10’).

12. The Applicant told the court that her family is aware of and supports their intention to adopt the Subject child. She has appointed her sister as the legal Guardian for the child. The proposed legal guardian EMW has signed a consent dated 4th November 2021 confirming her willingness to act as the legal Guardian for the child in the event of the death and/or incapacity of the Applicants.

13. Based on the material presented before this court I am satisfied that the Applicants are suitable adoptive parents.

14. The Subject child who was born on 6th July 2020 she was found abandoned aged barely three (3) weeks old on 27th July 2020 at Dandora phase 4 [Particulars Withheld] of Nairobi County. Members of the Public rescued the child and reported the abandonment at Dandora Police Station vide OB Number 18 of 27th July 2020. The child was taken to Imani Childrens Home and was later committed by the Nairobi Childrens Court to the same institution as a child in need of care and Protection. On 2nd May 2022 the child was released into the custody of the Applicants under a Foster Care Agreement.

15. Article 14 (4) of the Constitution of Kenya 2010 provides that: -“(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.”

16. The Subject child was found abandoned at the age of three (3) weeks within Nairobi County in the Republic of Kenya. Efforts by police to trace the biological mother and/or relatives of the child have borne no fruit. To date no person has come forward to claim the child. A final police letter dated 16th March 2021 confirms this fact. I therefore declare the child to be a citizen of Kenya by birth.

17. Given the fact of his abandonment there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances, I do waive the requirement for consent in line with Section 187(1) (a) Children Act 2022.

18. In deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. Section 8 (1) of the Children Act 2022 provides: -“(8). (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;” [own emphasis]

19. This is a child who was abandoned shortly after her birth. She faced an uncertain future living in children Homes and other similar institutions. This adoption provides the child with the opportunity to be raised in a stable and loving home environment.

20. The child has been living with the Applicants in their home for about one (1) year. She has undoubtedly bonded with the Applicant whom she views as her mother. The child knows no other family. I was able to see the child online. She was a healthy and happy child.

21. A Home visit was conducted by the Childrens Officer. The Applicant resides in a two-bedroomed apartment in Jogoo Road. The home was found to be conducive for the upbringing of the child.

22. I have considered the reports prepared by the Adoption Agency, the Guardian Ad Litem and the Director of Children Services. All three reports were positive and all recommend the adoption.

23. In conclusion, I find that this adoption does serve the best interests of the child. Accordingly, I do allow this application and make the following orders:-(1)The Applicant EMW is authorized to adopt the child currently identified as Baby TL.(2)The Child’s date and place of birth be declared to be 6th July 2020 in Nairobi County.(3)The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and privileges pursuant thereto.(4)EW, is appointed as the Legal Guardian of the child.(5)The Registrar General is directed to make relevant entry in the Adopted Children Register.

DATED IN NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. …………………………………MAUREEN A. ODEROJUDGE