[2022] KEHC 10773 (KLR)

In re VZ (Child) (Adoption Cause E001 of 2022) [2022] KEHC 10773 (KLR) (3 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10773 (KLR)

Republic of Kenya

In the High Court at Mombasa

Adoption Cause E001 of 2022

JN Onyiego, J

June 3, 2022

IN THE MATTER OF: THE CHILDREN ACT 2001 AND IN THE MATTER OF: ABANDONED BABY VZ- (THE CHILD) AND IN THE MATTER OF: AN APPLICATION FOR ORDERS OF ADOPTION OF ABANDONED BABY VZ BY PKK AND JWM -THE JOINT APPLICANTS

Between

PKK

1st Applicant

JWM

2nd Applicant

and

Little Angels Network

Respondent

Judgment

1. The joint applicants herein moved this honourable court vide originating summons dated 8th February,2022 seeking orders that;a.Pursuant to Article 14(4) of the Constitution of Kenya 2010 and Section 11 of the Children Act, 2001, this honourable court be pleased to declare the child Baby VZ a Kenyan citizen by birth.b.Pursuant to the provisions of Section 159 of the Children Act, 2001 this honourable court be pleased to dispense with the requirements of the consent to the adoption as required by the provisions of Section 158 of the Children Act, 2001. c.The applicants PKK and JWM be authorized to adopt Baby VZ.d.Upon the making of the adoption order, the child to be known as MNK.e.Upon the making of the adoption order, JWM and MKN be appointed legal guardians of the child as provided for by the provisions of Section 164 of the Children Act, 2001. f.Upon the making of the adoption order, The Registrar General do make an entry recording the adoption and the estimated date of birth of the child as 28th March,2020 in the adopted children register as provided for by Section 170 of the Children Act,2001. g.The costs of this application be costs in the cause.

2. The application is supported by the averments in the statement in support thereof sworn on 8th, February, 2022. The applicants are adult Kenyan citizens born in 1971 and 1972 respectively. They are married to each other and not blessed with children of their own. They are adoptive parents to a child namely B. The 1st applicant is also married to one PGK with whom they are blessed with 3 children. The motivation to adopt the baby has been ignited by the desire to have children of their own to make their family complete hence this adoption proceedings. Regarding their occupation, the applicants are businessman and businesswoman respectively.

3. Regarding the child estimated to be born on 28th March, 2020, she was on 2nd April 2020 found abandoned by members of the public in a thicket behind Sofla Petrol Opposite Virgin Hospital along Murang’a –Nairobi Highway. The child was rescued by the members of the public and the matter reported at Maragua Police Station vide Occurrence Book Number 21/1/04/2020. The child was then taken to Virgin Hospital, Maragua for medical attention and later on 27th August 2020 formally committed to the legal custody of Neema Infant Rescue Centre by the Resident Magistrate Children’s Court Murang’a vide Care and Protection Number 6 of 2020.

4. Consequently, in its meeting held on 3rd March, 2021, the case committee of Little Angels Network declared the child free for adoption and a Certificate S/No.xxxxxx thereof issued.

5. Upon instituting these proceedings, GWM was on 10th March, 2022 appointed guardian ad litem. The County Director Of Children Services through the Children Department,Mombasa and guardian ad litem were directed to file their respective social inquiry reports within 30 days.

6. Preceding the hearing, the Director Children Services through the County Children Coordinator Mombasa County filed his report dated 25th April, 2022 and filed on 26th April, 2022 recommending the adoption. Equally the guard ad litem filed her report on 7th April, 2022 recommending the adoption.

7. During the hearing, the applicants urged the court to allow the application to enable them adopt the baby and stated that they understood the consequences of adoption and that it’s permanent.

8. I have considered the application herein, materials in support and evidence by various witnesses. The issues that emerge for determination are; whether the baby is available for adoption, whether the applicants are fit to adopt the baby and most importantly whether the adoption is in the best interests of the child.

9. The baby herein was found abandoned by members of the public abandoned in a thicket behind Sofla Petrol Opposite Virgin Hospital along Murang’a –Nairobi Highway. Despite every effort to trace the parents and or relatives, nobody has come forward to claim the baby. This is evidenced by the police department’s final letter dated 28th October 2020. Accordingly, consent of the biological parents or guardian pursuant to Section 158 and 159 off the children Act is dispensed with. In the case of In re HN (Baby)[2020] Eklr the court had this to say;“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”

10. Regarding the baby’s nationality, the Constitution under Article 14(4) does recognize that a child who is less than 8 years of age, and whose nationality and parents are not known, is presumed to be a Kenyan citizen by birth. In view of this provision, the child herein is presumed to be Kenyan citizen by birth.

11. In terms of age, the child is above 6 weeks and below 18 years which age falls within the age bracket of any adoptive baby pursuant to Section 156 of the Children’s Act. Further, Section 157 does recognize any child who is resident in Kenya whether born in Kenya or not to be eligible for adoption. From the above finding, I have no doubt the child is fit for adoption.

12. Concerning the applicants’ suitability, they are Kenyan citizens aged 51and 50 years respectively which places them under the age bracket of not less than 25 years or more than 65 years for an adoptive parent in compliance with Section 158 of the Children’s Act. The applicants have been described as financially stable as both are businessman and businesswoman with an average income of Kshs500,000 and Kshs 100,000 respectively.

13. The applicants have been described as caring, loving and Christians with no criminal record. Since the placement of the minor into their custody, the child has fully bonded. They also understand the consequences of adoption and that it is permanent. They appreciate the role of a parent and admit they will treat the baby like their biological child.

14. Consequently, I have no doubt that the applicants have met the necessary requirements to adopt the baby. In that regard am guided by wisdom in the case of In re B (Baby)[2018] eKLR where the court stated;“I am of the considered view that weighing all factors and the evidence placed before me the applicants are of sufficient ability to bringing up the child and to furnish her with appropriate support and maintenance within their resource base availed to them.”

15. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution and Section 4(2) and (3) of the Children’s Act which underscores the best interests of a child principle as the primary consideration before making any decision concerning a baby.

16. The child herein was found abandoned in the bush. Nobody has come forward to claim him. She needs basic necessities like food, shelter, education and clothing. She has fully integrated with the applicants. It is obviously in the best interests of the child that this adoption application be allowed. I am guided by the case In re IK (Child) [2020] eKLR where the court stated;“She needs parental care to grow up as a normal child with emotional and physical protection which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and wellbeing of the child. As the Constitution and the law state, in all matters concerning a child, the best interests of the child are paramount.”

17. Similar position was held in the case of In re JK[2021] eKLR where the court stated;“In light of all the foregoing, the Court is of the view that the best interest of the child will be served by issuance of an order of her adoption to and by the applicants.”

18. Taking into account circumstances in which the child was found abandoned in the bush and considering that the applicants have extended a merciful hand of support to the baby, it is my finding that the application is merited and in the best interests of the baby allowed accordingly with orders that;a.The child is declared a Kenyan citizen by birth.b.The applicants are authorized to adopt Abandoned Baby VZ who shall henceforth be known as MNK.c.The consent of the biological parents is dispensed with.d.JWM and MKN are hereby appointed legal guardians of the minor in the event of any eventuality befalling the applicant.e.The registrar general is directed to enter the adoption order in the adopted children’s register reflecting the child’s date of birth as 28th March 2020f.The guardian ad litem is discharged.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RD DAY OF JUNE 2022J.N. ONYIEGOJUDGE