[2002] KEHC 1043 (KLR)
The court held that the application for adoption, having been filed before the commencement of the Children Act, 2001, is properly before the court and is to be determined under the repealed Adoption Act (Cap 143). The court found that the applicants are suitable adoptive parents, having demonstrated financial...
Source-derived case information.
- Citation
- [2002] KEHC 1043 (KLR)
- Parties
- Applicant: J D; Applicant: K D; Respondent: Vicky Wangai (infant)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 121 of 2001
- Procedural Posture
- Adoption Cause / Judgment
- Outcome
- adoption granted
- Legal Topics
- Adoption Procedure, Child Welfare, Parental Consent Waiver
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J D
Applicant
K D
Applicant
Vicky Wangai (infant)
Respondent
Procedural Posture
Adoption Cause / Judgment
Legal Issues
- 1 Whether the application for adoption is competent after the commencement of the Children Act, 2001.
- 2 Whether the requirements of the Adoption Act (Cap 143) have been satisfied for the adoption of the infant.
Ratio Decidendi
The court held that the application for adoption, having been filed before the commencement of the Children Act, 2001, is properly before the court and is to be determined under the repealed Adoption Act (Cap 143). The court found that the applicants are suitable adoptive parents, having demonstrated financial stability, social integration, and a history of successful adoption. The infant, having been abandoned and with no known relatives, is in need of care and protection. The court determined that the welfare of the child would be best served by granting the adoption, and that the consent of the natural parents could be dispensed with due to abandonment. The court authorized the...
Court Disposition
adoption granted
Orders
- The applicants J D and K D are authorized to adopt Vicky Wangai, who shall henceforth be known as R A R D.
- The consent of the natural parents is dispensed with due to abandonment.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI H.C. ADOPTION CAUSE NO. 121 OF 2001
IN THE MATTER OF VICKY WANGAI – AN INFANT
JUDGMENT
J and K D are American Citizens but have been resident together in Kenya since 1994. They have been married since 1976 and have four children of their own born between 1978 to 1987. They have adopted one child named E ND in Zambia on March 1999.
J is working with Theological college as a teacher in Machakos . K is a housewife looking after the children. The present income of the family is U.S$ 2,553/31 cents per month. The two elder children are now in U.S.A and are fending for themselves.The other two biological children are studying at Rift Valley Academy at Kijabe. According to the reports made both by the Guardian – ad- Litem and the Children Officer, all the children have bonded well with both the adopted and present infant and the facts of the adoption or the different race are of no concern or importance to them.
They are American citizens, and despite the fact that still there is a difference in white and black culture in that country, the applicants and their family have no qualms about the difference.Moreover, in their place of origin Kansas, there is fast growing social inter- dependency between the two races and the society is affable to the races and the race discrimination is not a problem. The financial situation of the applicants also has been considered in the reports and this court does not find any difficulty in that sphere.
The applicants are given profuse and well considered recommendation in both the reports.
The capacity and social background of the applicants are thus cleared and this court accepts the findings made in the aforesaid reports.
Two legal issues arise and I shall consider them now.
The first is the competence of this application after the enactment and commencement of Children Act from 1st March, 2002. This application was filed before the said date. I do note that the Children Act is silent on the savings of such applications which were properly filed before its advent.
I shall only look at the provisions of section 23 of the Interpretation and General Provisions Act (Cap. 2 Laws of Kenya).The Children Act does not stipulate any contrary intention as it is silent on the issue. Hence after specific attention of section 3 (e) of the said Act, I find that the present application is not affected by the enactment of the Children Act and its provisions repealing the Adoption Act (Cap 143) under which this application was filed.
The second issue in law will be provisions of Section 4(3) of the Adoption Act under which this application is filed. The background of the infant is very tragic. Baby R was found abandoned with HIV Positive status. The police handed over the infant to Kenyatta National Hospital from where she was given to the New Life Home.
The Applicants saw her there and took her under their wings since 8th March, 2001. They decided to adopt her with an intention to give a sibling of her age to their previously adopted child who is about 5 years old presently.
In any event this court find that the infant’s welfare shall be properly maintained and looked after if she is allowed to be adopted by the present applicants. She was found abandoned on 6th November, 2000 and this court shall treat the said date as her date of birth in the absence of any other evidence. In view of her total lack of facts as to her natural parents or other relative I also grant that the consent of the parents be dispensed with in this case.
Finally I direct that the applicants are and be authorized to adopt V W who shall henceforth be known as R A R D.
Dated and delivered at Nairobi this 14th day of May, 2002.
K. H. RAWAL
J U D G E.