[2023] KEHC 20053 (KLR)

In re Unknown Baby Boy a.k.a Unknown African Male a.k.a FP (Child) (Adoption Cause E232 of 2022) [2023] KEHC 20053 (KLR) (Family) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 20053 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E232 of 2022

PM Nyaundi, J

June 22, 2023

In the matter of

BMK

1st Applicant

RMM

2nd Applicant

Judgment

1. The Applicants, BMK and RWM vide Originating Summons dated 6th December 2022 have made an application for the adoption Unknown Baby Boy A.k.a Unknown African Male A.K.A F P the child herein. The applicants have been married since 2021. They wish to adopt the baby as they are not able to get their own biological child and they desire to grow their family.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 15th of June 2023.

3. 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 works as an accountant at [Particulars witheld], and The second applicant works as Case Processing Supervisor at[particulars witheld]. They have had custody of the child since 15th July 2022. They reside in Thika Landless Area. They fully understand the consequences of an adoption order.

4. The child was found abandoned in a nearby bush in Mwengenye area by a Good Samaritan BB of mobile number 071xxxx, who heard the baby crying and called police officers from Obama Police Station. The two officers then took the baby to Mama Lucy Kibaki Hospital. At the time of abandonment, the baby was estimated to be a day old.

5. On 20th December 2021 the matter of the abandonment was reported at Soweto Police Station, by Mama Lucy Kibaki Hospital where the incident was booked under OB NO. 16/09/09/2021. The Obama Police Station had also booked the case vide OB NO 07/08/09/2021 The child was admitted at House of Charity Children’s Home on 13th January 2022. on 8th February 2022, the Sub Country Children Officer Njiru wrote a letter to Nairobi Law Court requesting for the child’s committal and placement. The child was committed to the House of Charity Children’s Home by order of the Nairobi Children’s Court vide Protection and Care Case No. E022 of 2022. On 27th April 2022, Obama Police Station issued a second police letter indicating that nobody had claimed the child.

6. Prior to the hearing of the adoption application, Buckner Kenya Adoption Services prepared and filed a report dated 6th December 2022 and issued a certificate serial No. xxxx declaring the child free for adoption. The Court appointed a Guardian Ad litem CWM.

7. The Guardian Ad Litem, CWM 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.

8. An officer of the Department of Children Services, Mary Atati prepared a report dated 10th February 2023. The report established that the child was born on 8th September 2021 and abandoned on the same day. The matter was reported to two police stations; Obama police station under OB Number 07/08/09/2021 and Soweto Police Police Station 16/09/09/2021.

9. The child was taken to Mama Lucy Kibaki for a medical checkup and upon discharge he was placed at House of Charity Children’s Home for care and protection on 13/01/2022. On 23rd March 2022, the child was committed to the same home under protection case number E022/2022. The child remained unclaimed and his relatives could not be traced according to the final police letter dated 27th April 2022. After the elapse of six months, Buckner Kenya Adoption Services declared the child free for adoption on 14th June 2022 vide certificate number 0573. The child was placed with the applicant on 15th July 2022.

10. The proposed Legal Guardians SGK and EWW attended court and confirmed they are willing to take up the role of legal guardian. They are the 1st Applicant’s brother and sister-in-law.

11. 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.

12. The Applicants are aged 33 years and 36 years respectively.

13. 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

14. 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 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 made the 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;

15. 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 6th December 2022 and order as follows:I.The Applicants BMK and RWM be allowed to adopt Unknown Baby Boy A.k.a Unknown African Male A.K.A FP.II.The Child to be known as TKMIII.The Child be presumed to be a Kenyan citizen by birth.IV.SGK AND EWW 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 22ND DAY OF JUNE, 2023. P M NYAUNDIHIGH COURT JUDGEIn the presence of …………………………………………………………..Court Assistant Karani