[2022] KEHC 15250 (KLR)

In re WA (Infant) (Adoption Cause 1 of 2020) [2022] KEHC 15250 (KLR) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 15250 (KLR)

Republic of Kenya

In the High Court at Kajiado

Adoption Cause 1 of 2020

SN Mutuku, J

June 6, 2022

In the matter of

COO

1st Applicant

EMM

2nd Applicant

Judgment

1. The Applicants, through their Amended Originating Summons dated May, 2022 brought under various provisions of the law, being sections 154,156, 157(1)(a),2(b),3(a)(b)(c), 4(a), 159 1(a)(c), 4(i) 6, 7, 160 (1), (2), (4), 163, 164(1), and 170 of the Children Act No. 8 of 2001 and Section 22 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya, seek the following orders:i.That AMD of care of P.o Box No. xxxx-xxxx Nairobi in the Republic of Kenya, be appointed Guardian Ad Litem in this case.ii.That the Children’s department investigate the applicant’s fitness to adopt the said infant and file the report in court.iii.That the Applicants be authorized to adopt Baby W. A. alias E. A. (Infant) and that the said infant be known by the preferred name of W. A.iv.That the court be pleased to make any further and/or other order as it may deem fit and necessary in the circumstance.v.That Kevin Murithi Mwaniki of care of P.o Box Noxxxx-xxxx Embu in the Republic of Kenya, be appointed as legal guardian in this case.

2. In support of the Amended Originating Summons, the Applicants have filed a statement dated March 3, 2020 together with an undated affidavit that was filed on May 9, 2022 explaining that the circumstances of the child.

3. From these averments, Baby W. A. alias E. A. was found abandoned in Machakos; efforts to trace the mother or father were unsuccessful,. The child was presumed to have been born on October 23, 2018. She was rescued by good Samaritan on October 24, 2018 near Gelian Hotel in Machakos. Police were informed. They took over the baby and took her to Machakos Level 5 Hospital. Police booked the report in OBNo. 03/24/10/2018. The records show that on the child was committed to Mahali Pa Maisha Infant Rescue Centre for care and protection.

4. The Applicants are Kenya citizens and have been married to each other since the year 2019. They have had care and control of the infant since June 12, 2019 and that Mahali Pa Maisha Infant Rescue Centre had no objection to their adoption of the child.

5. They state that they are capable of providing for the child in terms of financial responsibility for the infant’s medical care, education and general upkeep and that they are physically and emotionally fit and healthy and therefore fully competent to take care of the infant.

6. They stated that they have a home with a comfortable environment suitable for nurturing children and ensuring their full development; that they are practicing Christians and intend to bring up the infant in the said faith and that they have never been charged nor convicted of a criminal offence or any offence referred to in the third schedule of the Children’s Act.

7. The Applicants have proposed KMM as the legal Guardian stating that they know him very well and that he is the brother to 2nd Applicant. That the said KM is fit, able and willing to act in the capacity of legal guardian. He has consented to be so appointed through his letter of consent dated March 28, 2022.

8. The Applicants have been cleared by the police of any criminal record through certificates dated December 28, 2018 for 1st Applicant and February 11, 2019 for 2nd Applicant.

9. On October 5, 2021, this court appointed AMD as Guardian Ad Litem upon application by the Applicants and directed that the Guardian Ad Litem and the Director Department Children Services investigate the suitability of the Applicants to adopt the child and file their respective reports within 45 days. Both reports have been filed.

10. The Report by the Guardian Ad Litem is not dated but the same was filed in court on November 23, 2021. I have read the report. It shows that she visited the Applicants at their residence although she does not state when she did this.; that the 1st Applicant is a businessman in the transport industry while the 2nd Applicant is a banker working for Equity Bank Ltd since 2008 in managerial position; that both are members of [particulars witheld] Church in Karen, Nairobi; that they solemnized their marriage at the AG’s Chambers in 2017 and that they live along Vet area in Ngong, in a two-bedroom rented house. They have one biological child, J.

11. The Report further shows that she found the child well settled, adjusted and relating well with J., the Applicant’s biological son; that since the child joined the family she has been introduced to spiritual life and attends Sunday school; that they have already started planning for the child’s education and that the baby is well fed and healthy.

12. The Reports is positive and recommends that the Applicants be allowed to adopt the child.

13. The Report from the Children Services is dated December 1, 2021. It is prepared by Cosmas Karera, County Coordinator Children Services and recommends that the Applicants have met the prerequisites for adoption as provided in section 157 and 158(1)(a) of the Children Act of 2001. The Report also recommends that the Applicants be granted the orders sought and be allowed to adopt the child as they have shown their capability to do the same.

14. The law under section 157 of the Children Act (No. 8 of 2001) provides that: -1. Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya: Provided that no application for an adoption order, shall be made in respect of a child unless the child concerned has been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants, as the case may be evaluated and assessed by a registered adoption society in Kenya.

15. From the records in the court file, the Applicants have had continuous care and control of the child for a period of three consecutive months preceding the filing of their application. The child was placed with the Applicants on June 12, 2019 and has been under their care and protection ever since.

16. The legal provisions under Section 158 of the Children Act (No. 8 of 2001) gives this court power to make an adoption order upon the application of a sole applicant or jointly by two spouses where the applicant(s) has attained the age of 25 years and is at least 21 years older than the child but has not attained the age of 65 years or where the applicant(s) is a relative of the child or is the mother or father of the child.

17. The Applicants herein have demonstrated that they comply with the age requirements stated above and the Guardian Ad Litem and the Director Department Children Services reports give good recommendations as to the capability of the Applicants to adopt the child.

18. The Applicants were not able to obtain the consent of the biological parents of the child or any relatives for reasons that they were not found. I have read the provisions of Section 159 of the Children’s Act that:(1)The court may dispense with any consent required under paragraphs (a), (b), and (c) of subsection (4) of section 158 if it is satisfied that—(a)in the case of the parents or guardian of the child, that he has abandoned, neglected, persistently failed to maintain or persistently ill-treated the child:Provided that—(i)abandonment may be presumed if the child appears to have been abandoned at birth or if the person or institution having care and possession of the child has neither seen nor heard from a parent or guardian of the child for a period of at least six months.18. I have also read the case of In re TP(Child) [2021] eKLR where the court held under paragraph 14 that:From the record and material presented before this court, the minor was abandoned by her mother. Although it was not very clear on the specific effort made to trace the mother who delivered the child, police department confirmed through their initial and final letter dated October 14, 2016 that the mother could not be found. Consequently, the need for consent pursuant to section 159 of the Children Act is dispensed with.

19. In this matter, I have noted, from the attached letters from Machakos Police station dated March 28, 2019 and May 7, 2019, that the child was abandoned and there are no known biological parents or relatives of the child. I have also noted that the child was declared free for adoption vide a certificate dated May 21, 2019 issued by Buckner Kenya Adoption Services.

20. Article 53(2) of the Constitution of Kenya 2010, and section 4(2) and (3) of the Children’s Act commands this court to take into consideration, the best interest of a child before making any decision affecting that child. I have considered that the child was abandoned and efforts to trace his biological parents have not been successful. I have considered the social and economic standing of the Applicants in this case and the law on adoption as well as UN Convention on the Rights of the Child (CRC), which Kenya ratified on 30 July 1990. I am satisfied that it will be in the best interest of the child to allow this application.

21. The Applicants have bonded well with the child. They have provided her with a home in a good environment where the child has been accepted. The Applicants have a biological child who has also bonded well with the child. In my considered view, making this adoption order will be in the best interest of this child. All the reports are positive and recommend that the Applicants be allowed to adopt the child. For the above reasons, I make the following orders:i.That the Applicant are hereby authorized to adopt Baby W. A. alias E. A. (Infant).ii.That the child shall be known as W. A and her date of birth shall be October 23, 2018, the date she was presumed to have been born.iii.That the Registrar General is hereby directed to enter this adoption in the Register of Adoptions.iv.That KMM is hereby appointed the Legal Guardian of the child W. A.v.That W. A is presumed to have been born in Kenya and therefore a Kenyan citizen.

19. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 6THDAY OF JUNE 2022. S. N. MUTUKUJUDGE