[2022] KEHC 15898 (KLR)

In re TP (Baby) (Adoption Cause (Adoption Cause E024 of 2022) [2022] KEHC 15898 (KLR) (Family) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15898 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E024 of 2022

MA Odero, J

November 4, 2022

IN THE MATTER OF THE CHILDREN ACT AND IN THE MATTER OF BABY TP AND IN THE APPLICATION FOR ADOPTION BY

DNN ..............................APPLICANT

Judgment

1. Before this court is the exparte originating summons dated March 7, 2022 by which the applicant seeks the following orders:-'1. The applicant DNN be authorized to adopt the child currently identified as baby TM aka TM.

2. Henceforth the child be renamed TNKN .

3. The child’s date of birth to be declared to be January 23, 2021 and her place of birth be declared to be Nakuru County.

4. The child be presumed to be a Kenyan citizen by birth and as a consequence be entitled to the rights and benefits of a Kenyan citizen, including being issued with a Kenyan passport whenever desired.

5. Consent of the biological parents/guardians to be dispensed with.

6. The guardian ad litem be discharged and Dr RSN of identity card No XXXXX and Dr VAG of identity card No XXXX be appointed as legal guardians of TNKN (intended name of the child), in the event that the applicant herein is incapacitated or in any way unable to discharge her parental obligations.

7. The registrar general be directed to make the appropriate entries in the adopted children’s register.

8. This court do issue such further orders as are in the interest of justice'.

2. The application was supported by the statement of even date sworn by the applicant. The application was canvassed by way of oral evidence on the virtual platform.

3. The applicant is a single woman who has never been married. She has no biological child. The applicant now seeks to adopt girl child aged 1½ years.

4. The applicant confirms to the court that she fully understands the legal implications of an adoption order and 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 this application, the reports filed in court as well as all the evidence adduced in support thereto. The prerequisites for adoption are set out in section 184 (1) of the Children Act 2022 which provides –'184(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.b.the child has attained the age of six weeks.'

6. The subject child was born on January 23, 2021 in [particulars withheld] Estate in Naivasha. The child is now aged 1½ years and is above the six (6) week age limit provided for in law.

7. Kenya Childrens Home Adoption Society which is a registered adopted agency have annexed to their report a certificate dated October 27, 2021 serial number xxxx declaring the child free for adoption. I am satisfied that the legal prerequisites for an adoption order have been met.

8. The duty of this court is to analyze the evidence on record to determine whether the applicant is a suitable adoptive parent. The applicant is a Kenyan citizen as proved by the annexed copy of her national identity card (annexture ‘DNNA’).

9. The applicant is a single woman who has never been married. She told the court that she has always desired to adopt a child out of her desire to provide a needy child with a home. The applicant is in gainful employment. She works as a [particulars withheld]. She earns approximately Kshs 300,000 per month. The applicant has annexed to the summons a copy of her bank statement issued by the Kenya Commercial Bank, which indicates that she has the financial capacity to provide for the child.

10. The applicant is a Christian and intends to raise the child in the Christian faith. Annexed to the summons is a letter of recommendation dated March 8, 2021 written by Rev Father XXXX the father in charge at [particulars withheld]. The applicant has also annexed a copy of a certificate of clearance issued to her by the Directorate of Criminal Investigations (annexture ‘DNN4’) proving that she has no criminal record.

11. The applicant was examined by a doctor and was found to be both physically and mentally fit. A copy of her medical report is annexture ‘DNN3’.

12. The applicant told the court that her family are aware of and fully support her intention to adopt the subject child. She has appointed her brother Dr RSN and his wife Dr VAG as the legal guardians for the child.

13. Based on the evidence presented before this court I am satisfied that the applicant is a suitable adoptive parent.

14. The subject child is believed to have been born on January 23, 2021. The child was abandoned immediately after her birth in [particulars withheld] Estate in Nakuru County. The baby was rescued and the abandonment was reported at Naivasha Police Station vide OB Number XXXXX. The child was taken to Naivasha County Referral Hospital for medical attention. On July 14, 2021 the Naivasha Children’s Court committed the child to XXXXX Centre for care and protection. Thereafter on October 27, 2021 the child was released into the custody of the applicant under a foster care agreement.

15. Article 14 of the Constitution of Kenya 2010 deals with issue of citizenship. Article 14(4) provides as follows:-'(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. This is a child who was abandoned immediately after her birth in the Republic of Kenya. I therefore declare the child to be a citizen of Kenya by birth.

17. Efforts by police to trace the biological mother of the child have to date born no fruit. No person has ever come forward to claim the child. A final police letter dated October 15, 2021, (annexture DNN ‘11’) is proof of this fact.

18. Given the fact of her abandonment, there exists no known person from whom consent for this adoption can be sought and/or obtained. I therefore waive the requirement for consent in line with section 187(i) of the Children Act 2002.

19. Section 8(1) of the Children Act 2022 provides as follows:-'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;(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the first schedule.'(own emphasis)

20. The child herein was abandoned at birth. She faced an uncertain future living in childrens homes and other similar institutions. This adoption allows the child the opportunity to be raised in a stable and loving home environment.

21. The child has lived with the applicant for the past year. I have no doubt the two have bonded. This is the only mother the child knows. I was able to see the child online. She was a cheerful bubbly baby and was obviously comfortable in the arms of the applicant.

22. A home visit was conducted on June 3, 2022. The applicant resides in the family home in Ongata Rongai. The house is a three-bedroomed bungalow on its own compound. It is well secured with a perimeter fence and is protected by CCTV cameras. The compound has enough space for the child to play.

23. I have perused the reports prepared by the guardian ad litem the adoption agency, and the directorate of childrens services. All three reports were positive and all recommended the adoption.

24. 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 DNN is authorized to adopt the child known as baby TP aka TM.(2)Upon adoption the child will be known TNKN .(3)The child is declared to be a Kenyan citizen by birth and is entitled to all the rights and benefits pursuant thereto.(4)The registrar general is directed to make the relevant entry in the adopted children’s register.(5)Dr RSN and Dr VAG are appointed as the legal guardians of the child.DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A ODEROJUDGE