DMGG & another [2022] KEHC 12508 (KLR)

DMGG & another (Adoption Cause E158 of 2021) [2022] KEHC 12508 (KLR) (Family) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12508 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E158 of 2021

MA Odero, J

May 13, 2022

In the matter of

DMGG

1st Applicant

SWM

2nd Applicant

Judgment

1. Before this court is the Originating Summons dated November 18, 2019by which the applicants DMGG and SWM seek the following orders:-“1. Spent2. Spent3. That LMI and EWM both of P.O. Box XXX-XXXX Chogoria be appointed as the legal guardians of the child in the event of death or incapacity of the applicants before she is of full age4. That the consent of the biological parents of the minor be dispensed with as the child was abandoned and the whereabouts of the parents remain unknown5. That the applicants be authorized to adopt baby E an infant to be known as ANM6. That the Registrar General be directed to enter this adoption in the Adopted Children Register and the baby’s date of birth be entered as November 23, 2016”.

2. The Summons was supported by the statement of even date sworn by the two applicants. The matter was canvassed by way of viva voce evidence on the online platform.

3. The Applicants herein DMGG and SWM, are a couple who got married to each other in the year 2003. The couple has no child of their own hence the desire to adopt the subject child who is a girl aged five (5) years. The Applicants both confirmed that they understood and accepted the legal implications of an adoption order and undertook to accord the subject child all rights due to a biological child including the right to inherit. The Report form the Adoption Agency confirmed that the Applicants had read and had explained to them the implications of an Adoption order. They voluntary signed a certificate of Acknowledgement as evidence of this. The Applicants confirmed that their extended family were all aware of and supported the couple’s intention to adopt the child.

4. PW4 Whitney Musango from KKPI Adoption agency. He stated that the Agency recommends the adoption.

5. PW5 Caroline Olilo from the Directorate of Children’s Services Nairobi County. She stated that they had filed their report and were recommending the adoption.

Analysis and Determination 6. I have carefully considered this application for adoption the various Affidavits and Reports on record as well as the relevant law. I have also considered the evidence adduced in open court. The preliminary requirements for the making of an Adoption Order are set out in Section 156(1) of the Children’s Act 2001 which provides as follows:-159 (1)No arrangement shall be commenced for the adoption of a child unless the child is atleast six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the Rules prescribed in that behalf.”

7. The subject child was born on November 23, 2016. Her birth certificate Serial No. XXXX is (Annexture ‘DMGC-1’) to the supplementary Affidavit dated 21st January 2022. The child is now about five (5) years and five (5) months old well above the six (6) weeks age limit provided for in law.

8. At page 12 of the Summons is a copy of a certificate declaring the child free for adoption, serial number XXX by KKPI adoption Society which is a registered adoption Agency. Accordingly, I am satisfied that all the legal pre-requisites for an adoption order have been met.

9. The duty of this court is to analyze the material placed before it and make a determination as to whether the Applicants are suitable adoptive parents. The Applicants are both Kenyan citizens. Annexed at pages 6 and 7 of the Summons are copies of their national identity cards marked ‘DMG-2’. The couple got married on 9th August, 2013 at ACK Gakurine Parish in Muranga as evidenced by the copy of their Marriage Certificate Serial No.XXXX annexed at page 5 of the Summons and marked ‘DMG-1” .

10. The Applicants are engaged in gainful self-employment. They earn their income from rent, agriculture and business. The 1st Applicant filed a Supplementary Affidavit dated 21st January, 2022 stating that he had secured employment in December 2021, he annexed to the Supplementary Affidavit a Payslip marked ‘DMGG-2’ showing that he is a Senior Finance and Subgrants officer at [Particulars Withheld], his take home salary is Kshs. 125,171/=. This together with the income from the businesses is sufficient to take care of a child.

11. The Applicants were both examined and found to be physically and mentally fit. Annexed to the Further Affidavit dated 15th February, 2021 and marked ‘SM-5’ are copies of their medical reports signed by a Dr. J.M. Kiragu. The Applicants have also annexed copies of their Certificates of Good Conduct issued by the Kenya Police Service maked ‘SM-7’ which prove that neither has any criminal antecedents.

12. The Applicants told court that their respective families are aware of and support their intention to adopt the subject child. That the child has been welcomed and is fully embraced by the family. Indeed the Applicants have appointed the 2nd Applicant’s sister EWM and her husband LMI as Legal Guardians of the child. The said EWM and LMI have both signed a consent dated November 18, 2019. The letters of consent, the guardians’ copies of Identity cards and an Affidavit of Marriage are annexed from pages 17 to 19 of the Summons.

13. The Applicants are practicing Christians and intend to raise the child in the Christian Faith. I am satisfied that the Applicants are suitable adoptive parents.

14. As stated earlier the child is a girl child who was born on November 23, 2016as per the birth Certificate serial number xxxx attached to the Supplementary Affidavit and Marked ‘DMGG-1’. The child was said to have been born to one Ida Wangari Wanjau of I/D Number xxxx. On December 14, 2016the Childs mother accompanied by a Good Samaritan took the child to the Children’s Office in Kasarani indicating her intention to give up the child for adoption. The baby was then admitted at Happy Life Childrens Home.

15. It appears that the biological mother then disappeared. She failed to return in order to conclude the adoption process. The matter was then treated as an abandonment and was reported at Kasarani Police Station vide OB Number of December 23, 2016. The OCS Kabete placed the child at Happy Life Children’s Home on December 23, 2016. Thereafter Nairobi Children’s Court committed the child to Happy Life Children’s Home on March 8, 2017. On February 18, 2018the child was released into the custody of the Applicants under a Foster Care Agreement.

16. Following the abandonment of the child, efforts by the police to trace the biological parents and relatives of the child have borne no fruit. Similarly no person has come forward to claim the child. The Report from the Director Childrens Services indicates that attempts to trace the mother through the Chief Mbogoni Location bore no fruit. Nobody knew the lady in question. The final police letter dated July 2, 2017is marked ‘SM-4’.

17. Given that this child was abandoned by her biological mother there exists no known person from whom consent for this adoption can be sought and/or obtained. In the circumstances I dispense with the requirement for consent in line with Section 159(1)(e) of the Children’s Act.

18. Article 14 of the Constitution of Kenya 2010 deals with issue of Citizenship. Article 14(4)provides as follows:“(4)A child found in Kenya who is, or appears to be less than eight years of age and whose nationality and parents are not known, is presumed to be a citizen by birth.”

19. The subject child was abandoned at birth in Kasarani which is in Nairobi County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth and I so declare.

20. In deciding upon any matter involving a child Courts are obliged to give priority to the best interests of the said child. Section 4(2) of the Children Act 2001 provides:-“(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (own emphasis)

21. Following her abandonment the subject child was committed to Happy Life Children’s Home for care and protection. On February 18, 2018 she was placed into the custody of the Applicants under a Foster Care Agreement. The child has lived with the Applicants in their family home since she was about One (1) year three (3) months old upto the present date. I have no doubt that the child has bonded with the Applicants and considers them to be her parents. I was able to see the child online; she was articulate, healthy and obviously very comfortable seated between the two Applicants.

22. A home visit was conducted on 29th February 2020, the Applicants were found to be residing in a three-bedroomed house at [Particulars Withheld] Estate Kasarani. The home was found to be well ventilated with a spacious play area for the child. It is occupied by the Applicants, the child and the house help. The Applicants are said to be building their own home in Ruiru. I have perused the reports prepared by the Guardian Ad Litem and the Adoption Agency. All are positive and recommend the adoption.

23. The Child was seen online by this court, she told court her name was AM, 5 years old, and stated that she goes to school and is in PP1. That her friend is Z and her best teacher is Teacher B. The child humorously referred to herself as ‘Doctor’ possibly an indication of her future aspirations. She stated she was at home with her mum and dad. The child appeared healthy happy and comfortable sitting between the Applicants.

24. This is a child who having been abandoned at birth faced an uncertain future in Children Homes and Institutions. This adoption provides the child the opportunity to be raised in a stable and loving home environment. All in all I am satisfied the adoption will serve the best interest of the child. Accordingly, I allow this application and make the following orders:-i.The Applicants DMGG and SWM are authorized to adopt the child known as Baby Eii.Upon adoption the child will be known as ANMiii.The child is declared Kenyan Citizen by birth and is entitled to all the rights and liberties due to a citizen of Kenya.iv.The Registrar General is directed to make appropriate entries in the Adopted Children’s Registerv.LMI and EWM are appointed as Legal Guardian of the child.It is so ordered.

DATED IN NAIROBI THIS 13TH DAY OF MAY, 2022MAUREEN A. ODEROJUDGE