https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8243

In re DI (Child) (Adoption Cause E002 of 2025) [2026] KEHC 8243 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 8243 (KLR) Republic of Kenya In the High Court at Nyeri Adoption Cause E002 of 2025 DKN Magare, J June 2, 2026 IN THE MATTER OF BABY DI (A CHILD) AND IN THE MATTER OF AN APPLICATION FOR ADOPTION ORDER BY PWN AND ENW Judgment 1.This Judgment is in respect of the Originating Summons dated 16.05.2025 seeking an Order that:a.The applicants be authorized to adopt the child, BABY DI.b.Upon making of the adoption order the child be known as JJNW.c.The Registrar General do make the appropriate entry of JJNW in the adopted children’s register.d.That the child JJNW be presumed to be Kenyan born in Kenya and the Director of Immigration Services do issue JJNW with a Kenyan passport. 2.The Applicants described themselves in the statement and affidavit in support of the application. They are respectively 50 and 46 years and were husband and wife. 3.Further, they had adopted another child in 2009 as they were trying to conceive. The minor herein was received in their care and possession on 24.11.2022 and they had bonded well. It is worth noting that the minor was born on 23.07.2022. Evidence 4.PW1 was DNK, the parties’ pastor and the guardian ad litem. He supported the application and produced a report dated 8.8.2025. I then directed the Director of Children Service and the Children Welfare Society to file their report. 5.PW2 was Frances Ndereko from the Child Welfare Society. She produced the report dated 29.8.2025 and filed on 25.05.2025. She indicated that the report is positive. They declared the child available for adoption pursuant to section 186(8)(a) of the Children’s Act. They also had report finding the applicants as suitable to adopt the minor. The minor had been abandoned. 6.PW3 was PWN. He is a driver earning Ksh 16,000/= and they had a 16 year old adopted child. PW4 was ENW. She had an income and does farming. 7.The court ordered the Children’s Officer to file a report before the next hearing. The children officer attended court on 22.04.2026 and produced the report. Analysis 8.The issue is whether the court should allow the adoption herein. This court has the power to make an adoption order. The following are the relevant provisions of the law on adoption in Kenya:183.Power to make adoption orders.(1)Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as "adoption order", authorising an applicant to adopt a child.(2)All proceedings under this Part shall be heard and determined in chambers, and the identity of the child and the applicants shall be kept confidential.(3)In this Act, adoption means local, kinship and foreign adoption.(4)For the purposes of this Part—(a)"kinship adoption" has the meaning assigned to it in section 2;(b)"local adoption" means an adoption in relation to which the child is resident in Kenya; and(ii)the adopting parent or parents are Kenyan nationals resident in Kenya; and(c)"foreign adoption" means an adoption in relation to which —(i)the adopting parent or parents are Kenyan nationals with dual citizenship;(ii)the adopting parent or parents are foreign nationals whether or not resident in Kenya;(iii)the adopting parent or parents are not Kenyan nationals but are biologically related to the child; or(iv)the adopting parent or parents were once Kenyan nationals but have lost their nationality by operation of the law of the host country to which the prospective parent or parents have a nationality 9.Pre-requisites for Adoption are also stated under the Section 184 of the Children Act, 2022 as follow:(1)A person shall not commence any arrangements for the adoption of a child unless-(a)the Council, in accordance with the rules, has declared the child free for adoption; and(b)the child has attained the age of six weeks.(2)A person, including a parent, guardian or adoption society, shall not, prior to the making of an adoption order, entrust a child to the care, possession or control of any person not qualified to adopt a child in accordance with this Act.(3)An applicant shall not preselect a prospective adoptive child except-(a)in the case of kinship adoption;(b)Where the applicant is a foster parent seeking to adopt a fostered child under the applicant’s care.(4)The Secretary shall monitor and submit reports to the courts on the wellbeing of a child who is subject to adoption proceedings.(5)Any person who contravenes subsections (1) or (2) of this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million shillings, or to both 10.Under Section 185, Children who may be adopted are stated as follows:(1)Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was born in Kenya.(2)Without prejudice to the generality of subsection (1), no Court may entertain an application for an adoption order in respect of a child unless—(a)the child concerned has been in the continuous care and control of the applicant within Kenya for a period of three consecutive months preceding the filling of the application; and(b)the application for an adoption order is supported by a report made by a duly registered adoption society recommending that an adoption order be made.(3)The report referred to in subsection (2)(b) shall contain the society’s findings and recommendations in respect of the child and the applicant or applicants, as the case may be.(4)The following children shall be eligible for adoption—a.a child who is an orphan and has no guardian or caregiver able and willing to take care of the child;b.a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year;c.children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part. 11.Under Section 185, on who may apply to adopt a child, the following is the law:(1)The Court may make an adoption order on application by—(a)a sole applicant; or(b)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; and(b)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.(4)The Court shall not make an adoption order in favour of a sole male applicant, unless the applicant is a blood relative of the child.(5)The Court shall not make an adoption order in favour of the following persons unless the Court is satisfied on reasons to be stated on the record that there are special circumstances that warrant the making of the adoption order an applicant or joint applicants who has, or both have, attained the age of sixty-five years.(6)The Court shall not make an adoption order in favour of an applicant or joint applicants if the applicant or joint applicants, or any of them—(a)is of unsound mind within the meaning of the Mental Health Act (Cap. 248);(b)is incapable of exercising proper care and guardianship of a child;(c)has been convicted by a Court of competent jurisdiction for any of the offences specified in the Third Schedule or similar offences;(d)in the case of joint applicants, if the applicants are not married to each other;(e)is a sole male applicant except where the applicant is a biological relative of the child; or(f)is a foreign applicant except where the applicant is a biological relative of the child.(7)Notwithstanding anything contained in this section the Court may at its sole discretion decline to make an adoption order in favour of any person or persons if the Court is of the view that it is not in the best interests of the child to make the order.(8)Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons—(a)a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child;(b)on the application of one of the spouses, the consent of the other spouse; and(c)in the case of a child who has attained the age of ten years, the child himself or herself.(9)If the child referred to in subsection (8)(c) has a disability which restricts or impairs the child’s ability to independently give his or her consent, the child shall be accorded such assistance, including the assistance of an intermediary, to facilitate his or her written consent. 12.In light of the above law, the court heard the relevant parties who testified in court and also perused all the documents filed in court. The Reports by the Guardian ad Litem and the Report by the County Children Coordinator, Child Welfare Society of Kenya, an Adoption Agency, were filed in court certifying the applicants as meeting the legal parameters to adopt the minor herein. 13.The court also heard guardian ad litem and legal guardian of minor who testified that the Applicants were fit to adopt the child and assured that they would play their role for the welfare of the minor. 14.PW3 and PW4, adoptive parents of the minor also testified that they took the child to their hands on 24.11.2022 having been rescued after abandonment on 2.08.2022 and the child had bonded well with them and they were ready to support the child as their own as they had income. 15.All the evidence supported the Applicants’ application for adoption. For the best interest of the minor, these considerations support the adoption. The Applicants, as supported by evidence on record, have met the legal requirements of adoption. No doubt, this adoption is laden with intentions to protect, support, provide inheritance for and maintain the child. 16.The commendation report by the County Children’s Office and the Guardian ad Litem too gives the Applicants the go ahead to adopt the minor. They describe the Applicants as committed and able of caring and maintaining the child as they have already been maintaining him and hold the view that the adoption herein sought will be in the child’s best interest. 17.The consent of the biological parents could not be obtained as the child was abandoned. Therefore, the consent of the biological parents of the child is dispensed with as the child was abandoned. 18.Thereof, the application for adoption is merited and I allow it. Determination 19.In the upshot, I make the following orders:a.The applicants be authorized to adopt the child, BABY DI.b.The consent of the biological parents of the child is dispensed with as the child was abandoned.c.Upon making of the adoption order the child be known as JJNW.d.The Registrar General do make the appropriate entry of JJNW in the Adopted Children’s Register.e.That the child JJNW be presumed to be Kenyan born in Kenya and the Director of Immigration Services do issue JJNW with a Kenyan passport.f.MBN is appointed as legal guardian of JJNW.g.The guardian ad litem is hereby discharged.h.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 2ND DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -No appearance for partiesCourt Assistant - Martin