20171208 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA ATARUSHA MISC.CIVIL APPLICATION NO. 242 OF 2016 IN THE MATTER OF JUDICATURE AND APPLICATIONS OF LAWS ACT, [CAP.358 R.E 2002] AND IN THE MATTER OF THE LAW OF THE CHILD ACT, NO. 21 OF 2009 AND IN THE MATTER OF ANGELA EMANUEL KANAELY .................................THE CHILD AND IN THE MATTER OF AN APPLICATION FOR LEGAL GUARDIANSHIP ORDERS BY LILIA NIKIFOROV- THE APPLICANT RULING DR. OPIYO, J. This is a ruling in respect of an application made under Article 13 (1) and 108 (2) of the Constitution of the United Republic of Tanzania, 1977 (as amended) section 2 (1), (3) of the Judicature and applications of laws Act, [Cap 358 R.E 2002], article 4 (1) (2) of the African Charter on the Rights and Welfare of the child, 1990, Article 3 (1) of the United Nations 1 Conventions on the Rights of the Chiild, 1989, section 4(2) 7(1) 8(1) 9(1) (2), 16 (a) ,(b), (c) ,(d) , 37 (1), 45 (1) of the Law of the Child Act, No 21 of 2009 and section 95 of the Civil Procedure Code [Cap 33 R:E 2002] and any other enabling provision of the laws .It is the application for the orders that; 1. That, this Honorable Court be pleased to appoint LILIA NIKIFOROV, the Applicant herein to be the legal guardian of the child ANGELA EMANUEL KANAELY with full parental rights and responsibilities, 2. That, this Honorable Court be pleased to issue orders to the effect that LILIA NIKIFOROV, the Applicant herein be permitted to live and travel with the child, ANGELA EMANUEL KANAELY in the United Republic of Tanzania, in the United States of America and or elsewhere in the world upon the consent of the natural grandmother of the child by the name of Ndeshukuro Kanaely, 3. That, this Honorable Court be pleased to issue orders to the effect that the applicant be submitting progressive report from the Social welfare offices of the United States of America to the registrar of the High Court of Tanzania and social welfare offices in Tanzania every year. 4. Any such orders that this Honorable Court may deem fit and just to grant, 2 5. Costs of this Application be met by the Applicant, The applicant in this matter is represented by Learned Counsel, Robert Mgoha, who, in support of the application submitted, the applicant is American citizen aged 32 years old and she has been a volunteer with a foundation by the name of Effort Tanzania Foundation and Sonshine Ministries Orphanage Center of Tanzania, in Arusha Region in the United Republic of Tanzania from September 2008 to October 2015. Mr. Mgoha further submitted that, the Applicant Lilia desires to be legal guardian of the child, Angela Emanuel Kanaely aged five years old, who is currently residing with the applicant at Njiro area, Arusha Region, after being taken from Sonshine Ministries Orphanage Centre, in Kikatiti area, Meru District Arusha, in the United Republic of Tanzania. Further that she is not related to the child, Angela Emanuel Kanaely who was born on 2nd December 2012, at home in Kikatiti area, Arusha Region in the United Republic of Tanzania. Giving the brief History of the child Mr. Mgoha submitted that sometimes in 2013 the natural mother of the child Angela Emanuel Kanaely, abandoned the child at her grandmother's house by the name of Ndeshukuro Kanaely who is living in a difficult situation and poor environment, which made her not to take proper care of the child, Angela Emanuel Kanaely. Due to such circumstances, sometimes in November, 2014, the Meru District Social 3 Welfare Officer, informed the Sonshine Ministries of Tanzania about the said child Angela Emanuel Kanaely's situation and or circumstances and ,_ directed that the said child be taken to the Orphanage Centre. On the 18th November, 2014, the child was officially entered admission at Sonshine Ministries Children Home and that fortunately when the child Angela Emmanuel Kanaely was brought to the orphanage center the applicant herein was a volunteer therefore she came into knowledge of the child's situation and circumstances after being informed of her history, she was touched hence started to develop the relationship with the child. It was the learned counsel submission that, apart fro.m that the Applicant has made and followed all the necessary procedures and or requirements as required by the Social Welfare and by the Department of Homeland security and Department of Social Service in the United States of America, Federal Bureau of Investigation in the United State of America to enable her to undergo this Appl'ication. He added that the natural mother of the child Neema Kanae! and grandmother Ndeshukuro Kanaely are both present before this court today and are both in support of the application and sworn an affidavit to that effect. And that the applicant believes that it is for the best interest of the child that she is appointed the legal custodian and guardian of the child with full parental rights and responsibilities. ' 4 The learned counsel submitted that, the Applicant do believe that it is for the best interest of the Child, Angela Emanuel Kanaely that this Honorable Court appoint her to be a Legal Custodian and Guardian and grant her legal custody of the child with full parental rights and responsibilities for the reason that, the child Angela Emanuel Kanaely is the child in need who has been placed to the orphanage centre since November 2014 and it is only the Applicant herein who has confirmed her intentions in taking full parental responsibilities and duties to the child as there is no confirmed arrangements for the future and well being of the child by either the social welfare department in the United Republic of Tanzania nor anyone else apart from the Applicant herein, Who has been caring for her since November 2014. He added that the orphanage centre is not a permanent solution to the circumstances involving the child. His further submission is that the Applicant have been approved by the Department of Homeland security and Department of Social Service in the United State of America, Federal Bureau of Investigation in the United State of America to be a person of good character. He thus prayed for this court to give the child the primary consideration in ascertaining her best interest and wellbeing in granting the prayers. Mr. Mgoha went on submitting that, it is for the best interest of the child, Angela Emanuel Kanaely to be placed under custody and guardianship of the Applicant herein so that she can enjoy the rights of growing with a guardian as guided or provided under section 7(1) of the Law of the Child, Act 2009. The grant of custody for the child, Angela Emanuel Kanaely and appointment of legal custody and guardianship to the Applicant herein will enable the child to enjoy the right to leisure and liberty subject to the Applicant's guidance as provided under Section 9(2) of the Law of the Child Act, 2009. Based on the above submission Mr. Mgoha prayed that this 5 l • Honorable court to consider the application and grant the prayer sought in the chamber summons. I \ After consideration of the. submission of the counsel, I am convinced that, it is for the best interest and welfare of the child ANGELA EMANUEL KANAELY which is of paramount importance in such applications. Given the fact that no confirmed arrangements of her well being and future plans has been established by neither the social welfare Department in the United Republic of Tanzania nor her parents, the fact which will end up affecting her emotionally and physiologically. In my view, having a person who is willing to offer her a parental care is to her best interest. I therefore grant the application under the following orders; (1) The applicant LILIAN NIKIFOROV is hereby appointed legal guardian of the Child by the name ANGELA EMANUEL KANAELY (2) The custody of the child ANGELA EMANUEL KANAELY is granted to the applicant LILIA NIKIFOROV. (3) The applicant is at liberty to obtain Tanzanian passport for the child ANGELA EMANUEL KANAELY. ( 4) The applicant LILIA NIKIFOROV is permitted to live and travel with the child ANGELA EMANUEL KANAELY within the United 6 . Republic of Tanzania. Travelling outside Tanzania is subject to a written approval of the Deputy registrar, Arusha District Registry. (5) The costs of this application be met by the applicant. ' DR. M. OPIYO, JUDGE 08/12/2017. J I