[2016] KEHC 1471 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 247 OF 2015

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2001

IN THE MATTER OF ADOPTION OF V N D (CHILD)

BY

F V AND L M (APPLICANTS)

JUDGMENT

1. The Applicants F V and L M are in a monogamous marriage which was solemnized at the Registrar’s Office on 9th December, 2003. They have two children of their own. They have a harmonious and peaceful family.

2. The Applicants wish to adopt the child known as Baby Y N D a minor of female sex, through the Chamber Summons dated 31st July, 2015. They indicate that F L V is a Head of Languages/Spanish teacher at [particulars withheld] School and a Free Lance Translator, while L M M is a Consultant. They reside in [particulars withheld]and are both Christians.

3. The child in this matter according to records is said to have been born on 21st November, 1999. The minor is a cousin to the 2nd Applicant. Her father was the 2nd Applicant’s maternal uncle by the name of A M G who passed away through a road accident on 19th February, 2000. Her mother B C A then deserted the child with her grandmother and disappeared.

4. When the Applicants got married in 2003 they had assumed parental responsibility of the minor and applied for legal guardianship before proceeding with this proposed adoption. The female Applicant took over guardianship of the child since then. the mother of the child passed on in 2011.

5. The Applicants considered the child as their 1st born and have taken her to school right from Kindergarten. She is a pupil at [particulars withheld]School and is now in year 11. She relates well with the male Applicant and her other siblings, the Applicants’ two biological children who know that she is being adopted, but treat her as their elder sibling. She has bonded very well with the Applicants.

6. The minor says she has known the Applicants as her parents since the age of 3 years and cannot tell the difference. She is aware that her biological mother was a widow who died when she was very young and that her father died when she was an infant.

7. The minor confirms that her relationship with her younger siblings is normal and they get equal treatment from their parents and go to the same school. She has consented to the proposed adoption. The two biological children of the Applicants appreciate the subject child and regard her as their sister. They describe her as great, good and enjoyable. They love her and would be very happy to have her as a sister.

8. The Applicants would like to adopt the child so that she can be legally their child and enjoy the same benefits as their two biological children and can only accomplish this through adoption. The Applicants are aware that an adopted child has a right to inheritance and have no objection at all.

9. A visit to the Applicants’ home by an officer from Children’s Office on 26th September, 2016 confirmed their living arrangement. The officer observed that the subject child has bonded well in the family.

10. The child was declared free for adoption by Little Angels Network Adoption Society, vide certificate number [particulars withheld] dated 30th April, 2014. The Adoption Society also found the Applicants suitable to adopt and they have the means to provide for the minor in this matter together with their two biological children.

11. The Director of Children’s Services also filed a report dated 10th October, 2016 recommending the adoption for reasons that the child stands to gain the opportunities provided by becoming the daughter of the Applicants and growing up in a loving home and with siblings rather than growing up in an institution.

12. The guardian ad litem, N M M also filed a report that was favourable and recommended the adoption of the child by the Applicants.

13. In considering an application such as this, the best interests of the child are paramount. Article 53(2)of theConstitution provides the guiding principle on this issue as follows:

“A child’s best interests are of paramount importance in every matter concerning the child.”

The other pertinent law is the Children Act No. 8of 2001 and in particular Section 4(3) thereof.

14. This is a Kinship adoption and the Applicants have fulfilled the requirements for local adoption under the Children Act, 2001. They have proved during the placement period prior to adoption, that they are capable of taking on the challenge of raising the child in this matter. Secondly, they meet the social parameters that are considered relevant to their taking on parental responsibility and custody of the child in this matter on a permanent basis as would be conferred by the adoption order sought.

15. From the foregoing, this court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicants. Reasons wherefore I allow the prayers sought in the Originating Summons dated 31st July, 2015 and order as follows:

i. The Applicants, F L V and L M Mare hereby allowed to adopt Baby Y N Dwho shall henceforth be known as D V.

ii. Her date of birth shall be presumed to be 21st November, 1999. She is presumed to have been born in Kenya in accordance with Article 14 (3)of theConstitution, and the place of birth shall be Kapenguria Hospital.

iii. P W and L W W (friends to the Applicants) are hereby appointed legal guardians of the child in the event that the Applicants die or are incapacitated by ill-health.

iv. The Registrar General is directed to enter this order in the Adoption Register.

v. The Director of Immigration is hereby authorised to issue the child with a Kenyan passport.

vi. The guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 3rd day of November, 2016.

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L. A. ACHODE

JUDGE

In the presence of ……………………Advocate for the Applicants