20150530 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM MISC. CIVIL CASE NO 591 OF 2014 IN THE MATTEROF THE LAW OF THE CHILD, ACT NO 21 OF 2009

AND

IN THE MATTER OF AN APPLICATION FOR AN ADOPTION ORDER

BY EDWIN JOHN MWENDA AND JACQUELINE HIASINTUS MATUNDA OF P.O BOX 77298, DAR ES SALAAM ....... PETITIONERS AND IN THE MATTEROF JOAN KISUDE THE ADOPTIVE CHILD OF P.O BOX 77298, DAR ES SALAAM .......................... RESPONDENT

RULING Date of Last Order: 14/4/2015 Date of Ruling: 30/4/2015 MKASIMONGWA, J. This us a petition for Adoption Order by EDWIN JOHN MWENDA and JACQUELINE HIASINTUS MATUNDA, the First and Second : ..... 1 Petitioners respectively, who are desirous of adopting JOAN KISUDE (the adoptive child). The petitioners are husband and wife. They are residents of Dar es Salaam where they again work for gain. Whereas the First Petitioner is self- employed as an Information Communication Technology Consultant, the second petitioner is a Banker Working with Barclays Bank Tanzania Limited. In their marriage the petitioners are blessed with two children. The 1 '\ ' spouses are desirous of adopting JOAN KISUDE a female and unmarried Tanzania Citizen who was born on the 31 st day of December, 2011 in KCMC Hospital Moshi, Kilimanjaro Region. The Adoptive child does not know her biological parents as she was found in Neema Children's home which is in Moshi where upon being consented by the Commissioner for Social Welfare was taken by the petitioners as foster parents sometime on 15th day of October, 2012. As from the date she was taken from the Children's Home JOAN KISUDE did not live with persons other than the petitioners. The petitioners also contended that the adoptive child had never been a subject of any Adoptive Order and that there was no Application for Adoption in respect of the child made

at any time. They (petitioners) have not been induced in any way to make this application. If the order sought is granted the petitioners undertake to provider for call necessities of life to the child whom they pray should be known by the name of JOAN EDWIN MWENDA. They pray that an Adoption Order be granted as sought. On the other hand ALPHONSA ANDREW SHIRIMA, a Social Welfare Officer of the Social Welfare Department, Family and Child Welfare Services who was appointed a guardian ad /item of the adoptive child contended that in 2011 the petitioners applied to the Director of Social · Welfare for an adoption of a child. After conducting investigation in regard of the applicants, their relatives and sureties, the Commissioner for Social Welfare was satisfied of the fitness of the applicants to adopt a child. The Applicants were sent to Neema Children's Home in Moshi with a view to identify a child they could adopt. After they had identified the adoptive child the Social Welfare Office conducted an investigation in collaboration 2 \ ' with the police. From the investigation it was detected that the adoptive child was born in KCMC and her mother deserted her in the Hospital immediately after she was born. The mother could not be traced. As a result, the child was taken to the children's Home. They were satisfied that the child had no known parents therefore could be taken by her

foster parents. The child was placed under the custody of the foster parents sometime in 2012 and there was not person who claimed for the child. The Commissioner for Social Welfare therefore consents to the adoption of the child so that she may have parents. The Guardian ad !item added that the petitioners have DAVID and CLARINEMARIE as their biological children. They show to be capable of adopting a child. The adoptive child is now schooling in a Nursery School along with her follows. The petitioners have ability to provide the child with all necessities of life as their own biological child. They understand the purpose of the adoption and their obligations if the order for adoption is granted. The guardian ad !item recommends the petitioners for the adoption. That is all from the parties. From the pleadings and submissions made to the court it is clear that the petitioners have been living with the adoptive child as foster parents from 15/10/2012. By the time this petition was being filed on 11/11/2014, the child had been under the care of the petitioners for more than twenty four months. It is also clear that the child was born on 31/12/2011. She was about three years old when the petition was lodged in court. As such she is not mature enough to understand the meaning and effects of adoption, therefore could not signify her consent to 3 the adoption. It is also clear that

the adoptive child was deserted by her mother in hospital after she was immediately born. The child's mother could not be traced and no one had at any time claimed to be the parent or guardian of the child. Under such circumstances consent by the parents for the adoption of the child is dispensed with. Before an Adoption Order is granted the court to which an application for adoption of child is made must be satisfied that the adoption of the child is in the best interest of the child and that the adoption can be conferred upon the applicant. The issues to be determined therefore are one: whether the adoption of JOAN KISUDE is in her best interest. Two: whether the adoption can be I ) conferred upon the petitioners. As regards to the first issue, I have considered the fact that the adoptive child has no known biological parents. She was dumped on birth hence taken to a Children's Home for care. Placement of a child in a children's home is just an interference measure to safeguard the child's safety/welfare by the society. It is not the best interest of a child to remain in the home for her whole life. A child needs a father and a mother. As adoption of the child, brings the child to a position of having parents, it is my view that it will be in the interest of the child if she is adopted. I therefore answer the first issue in the affirmative. As to whether the adoption can be

conferred upon the applicants, I have considered what was stated by the guardian ad !item on the suitability of the petitioners to adopt the child and accordingly am convinced that the adoption can be conferred upon the petitioners. 4 ' Q . From what is discussed herein above, I grant this petition by EDWIN JOHN MWENDA and JACQUELINE HIASINTUS MATUNDA for adoption of a child JOAN KISUDE, and do accordingly order for issuance of an Adoption Order in respect of the adoptive child who as from today shall assume the name JOAN EDWIN MWENDA. A copy of the Adoption Order be served to the Registrar-General. No order as to costs in made. Dated at Dar es Salaam this 30 th day of April, 2015. E.J.~a

JUDGE 30/4/2015 5 Date: 30/4/2015 Coram: Mkasimongwa, J Petitioners: Absent C.C Janeth Mrs. Shiyo (Advocate): My lord I am for the petitioners. The matter is coming for Ruling. We are prepared to receive it. Order: Ruling is delivered in Chambers this 30 th day of April, 2015 in the presence of Mrs. Shiyo, Learned Counsel for the petitioners. E.J.~wa

JUDGE 30/5/2015 l ' 6