In re AA (Minor) [2022] KEHC 17225 (KLR)

In re AA (Minor) (Adoption Cause E039 of 2022) [2022] KEHC 17225 (KLR) (Family) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17225 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E039 of 2022

EKO Ogola, J

December 13, 2022

IN THE MATTER OF THE CHILDREN’S ACT, 2001 AND IN THE MATTER OF THE ADOPTION OF BABY AA (MINOR) AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY GNM

Judgment

1. Before this Court is the Originating Summons dated March 28, 2022 by which the applicant GNM seeks the following orders: -a.That the applicant be authorized to adopt Baby AA, a minor who is to be known as AZN and the Registrar General be directed to enter this adoption into the Register of Adoption.b.That IWM be appointed as the legal guardian of the minor presumed to have been born in Kenya.

2. The Originating Summons was supported by the Applicant’s Affidavit and a Statement. The matter was canvassed by way of viva voce evidence in open court.

3. PW1 was LKK the appointed guardian ad litem. She testified that she visited the Applicant and subsequently filed a report dated June 14, 2011 recommending the Applicant as a suitable adoptive parent.

4. The Applicant as PW2 testified that she applied to Buckner Kenya Adoption Service seeking to adopt a child. She added that her application was considered, and Imani Children’s Home accordingly placed Baby AA into her custody on November 28, 2021. The Applicant has lived and properly bonded with Baby AA. She added that Baby AA has also bonded well with her nuclear and extended family. The Applicant is not married. She resides in Murera, Ruiru and is a committed Christian fellowshipping at Deliverance Church Murera. She has no criminal record. The Applicant works as an Administrator at Kenyatta University and is capable of sufficiently providing for the child.

5. Mr Muhanda, learned counsel for the Applicant submitted that the Applicant’s wished to rely on the Report by the County Children’s Office dated July 25, 2022, and the Social Study Report by Buckner Kenya Adoption Society dated May 11, 2021 in support of this Application.

Determination 6. I have considered the Summons and the various reports filed.

7. From the reports, the child was abandoned at the gate of Dandora II Health Centre on September 7, 2019 at around 9:00 am. She was rescued by a night guard and taken to Sister Muhonja (KRCHN) at the Health Centre. First aid was administered to her and she was then reported to Dandora Police Station. The SCOC Embakasi placed the child at Imani Children’s Home for temporary care and protection. On October 24, 2019, the Children’s Court, Milimani committed the child to the care of the said institution for a period of three years. The child remained at the Home until she was placed under the care of the Applicant on November 28, 2021.

8. The prerequisites for adoption are set out in Section 156(1) of the Children’s Act, 2001 which stipulates as follows:-“159(1) No arrangement shall be commenced for the adoption of a child unless the child is at least 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.”

9. When this adoption process commenced, Baby AA was almost three years of age which is above the six (6) week age limit provided for by law. The Buckner Kenya Adoption Agency which is a registered Adoption Service annexed to their report a certificate declaring the child Free for Adoption. I am satisfied that the legal prerequisites for an adoption order have been met.

10. Is the Applicant a suitable adoptive parent? The Applicant is a Kenyan citizen as evidenced by the copy of her National Identify Card. She is a committed Christian and intends to raise the child in the Christian Faith. She is also gainfully employed and can sufficiently provide for Baby AA. The Applicant has also annexed a copy of her Clearance Certificate issued by the Kenya Police Service as proof that she has no criminal record.

11. The Applicant has appointed IWM to be Baby AA’s legal guardian in the event she will be unable or unavailable to provide for the child. The Applicant’s extended family is supportive of her intention to adopt Baby AA. From the foregoing, I am satisfied that the Applicant is a suitable adoptive parent.

12. The subject child was abandoned when she was less than a week old. Article 14 of the Constitution deals with the question of Citizenship. It states that:-“(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.

13. In the upshot, I declare Baby AA, a citizen of Kenya by birth.

14. Furthermore, in deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 4(2) of the Children Act 2001 stipulates as follows:-“(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”

15. Baby AA was abandoned days after she was born, and she was bound to face an uncertain life. This adoption allows her the opportunity to be raised in a stable and loving home environment.

16. A home visit was conducted by the Children’s officer. The Applicant was reported to be living in a three-bedroomed bungalow with Baby AA and a nanny. The home was reported to be safe, secure, and conducive for raising a child. The reports by the Adoption Service, the guardian ad litem, and the Children’s Services were positive and recommended the adoption. The reports also indicate that the child appeared to be healthy and happy.

17. I find that this adoption does serve the best interests of the child. Accordingly, I allow the Originating Summons dated March 28, 2022 and make the following orders:-

a.The Applicant, GNM is authorized to adopt the child known as Baby AA.b.Upon adoption, the child shall be known as AZN.c.The child is declared to be a Kenyan Citizen by birth and is entitled to all rights and benefits under the Constitution of Kenya and all applicable laws.d.The child’s date of birth is hereby declared to be September 7, 2009, and her place of birth is hereby declared to be Nairobi County.e.The guardian ad litem, LK, is hereby discharged.f.IWM is hereby appointed as the legal guardian of the child.g.The Registrar General is directed to make the relevant entry in the Adopted Children Register.It is so ordered.

DATED and DELIVERED at NAIROBI this 13th day of December 2022E K OGOLAJUDGEIn the presence of:N/A for the ApplicantGisiele Muthoni Court AssistantE K OGOLA J Page 2 of 2