In re ASN (Minor) [2022] KEHC 12090 (KLR)

In re ASN (Minor) (Adoption Cause E072 of 2020) [2022] KEHC 12090 (KLR) (Family) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12090 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E072 of 2020

MA Odero, J

May 6, 2022

IN THE MATTER OF THE CHILDREN’S ACT, 2001 IN THE MATTER OF ASN AND IN THE MATTER OF AN APPLICATION FOR THE ADOPTION BY JNM…. APPLICANT

Judgment

1. Before this court is the Amended Originating Summons dated 11th June, 2021 by which the applicant JNM seeks the following orders:-“1. That the Applicant JNM be allowed to adopt the minor ASM.

2. That the said child is a Kenyan Citizen having been born of a known Kenyan mother on 20th April 2016

3. That the Registrar General makes the appropriate entries into the Adoption Children’s Register”.

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

3. The Applicant herein told court that she is married to one TMM and together they have two children aged thirteen (13) years and three (3) years. She wishes to adopt the child aged six (6) years. The subject child is related to her. The child is her niece as the Childs father is the Applicant’s brother. The biological mother of the child died in 2019 and the Applicant has been living with the child since then. The Applicant stated that her husband has consented to the adoption and the entire family is aware and supportive of the intention to adopt the child. The Applicant confirmed that she 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.

4. PW2 LWM was the Guardian Ad Litem. She produced in court her report recommending the adoption.

5. PW3 Mary Atati from the Nairobi County stated that she filed their report dated 19th July, 2021 recommending the adoption.

6. PW4 TMM told court that he is the Applicant’s husband and confirmed they have been married for ten (10) years. He also confirmed they had two (2) other daughters aged thirteen (13) years and three (3) years. He knows the child as the daughter of his wife’s brother. He has lived with the child since September, 2019 when the mother passed away. PW4 told the court that he has embraced the child and he treats her as her own. That he has no objection to the adoption.

7. PW 5 PK is the Childs biological father. He told court that he lives in Murang’a and he is a driver with the Ministry of Agriculture. He stated that the child was born on 20th April, 2017 and confirmed that the child’s mother passed away on 3rd September, 2019. After the demise of her mother the Applicant took the child to live with her. He stated that when the Applicant took the child to live with her, he felt that was the best for the child since he is not able to take good care of the child as he travels a lot for work. He is aware of the intention by the Applicant to adopt the child and has no objection to the application. He said he is aware of the legal implications of an adoption order, and knows that once an adoption order is made, it is not reversible. He gave his consent for the adoption. He told court that his child has bonded very well with the Applicant and her family and believes that she will have a stable home there.

Analysis and determination 8. 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 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. The subject child was born on 20th April, 2016 as evidenced by the birth Certificate annexture ‘JNM 8’ attached to the Applicant’s Statement. The child is now about six (6) years old well above the six (6) week age limit provided for in law. Annexed to the Report of the Adoption Agency is the copy of the Certificate Serial Number xxxxx issued by the Change Trust declaring the child free for Adoption. I am therefore satisfied that all the legal pre-requisites for an adoption order have been met.

10. The duty of this court is to analyze the material placed before it and make a determination as to whether the Applicant is a suitable adoptive parent. The Applicant is a Kenyan citizen. Annexed to the Applicant’s statement and marked ‘JNM 2’ is a copy of her national identity card.

11. The Applicant is engaged in gainful self-employment dealing with graphic design and property sales. The report by the adoption agency states that the family saves Kshs. 100,000 a month after catering for all the household expenses. The couple have built their own home on a 0. 2 acre land, and own a car, plots in Kitengela and another plot in Murang’a adjacent to the family farm.

12. The applicant and her family are Catholic Christians and intend to raise the child in the Christian Faith. The Applicant was examined and found to be physically and mentally fit. The Applicant has also annexed a copy of her Certificate of Good Conduct issued by the Kenya Police Service marked “JNM 6” which prove she has no criminal antecedents.

13. This is a family (kinship) adoption as the Applicant is the paternal aunt of the Subject child. The father of the child who is the Applicant’s brother has consented to the adoption. Indeed, the Applicant has been providing for everything needed towards the education and upkeep of the child since the year 2019 when the Childs mother died. The child’s father signed a consent dated 6th November, 2020 (Annexture ‘JNM 9’ together with a copy of his Identity card).

14. The Applicant’s husband testified online. He confirmed that he was fully aware of and supported his wife’s intention to adopt the subject child.

15. The Applicant has also appointed as legal guardian her sister known as JWM to take care of the child should the Applicant become permanently incapacitated or die before the child attains the age of majority. The consent of the legal Guardian is annexed together with her identity card and marked “JNM 7”. The legal Guardian is a family member and lives with the subject child two siblings.

16. Based on the foregoing I am satisfied that the applicant is a suitable adoptive parent.

17. The Subject child is a girl – child who was born on 20th April 2016. A copy of the childs birth certificate serial Number [particulars withheld] is Annexture JNM 8 to the Applicant’s statement. The child was born to PWK (deceased) who was married to the Applicant’s brother PK. The child’s biological mother unfortunately passed away when the child was about three (3) years and five (5) months old. The Applicant told the court since the death of the child’s mother she has been living with the child and has been catering for all her needs. The child’s father told court that he had no problem his child being adopted by his sister since the child needed a stable home which he is unable to provide due to the nature of his job.

18. In deciding upon any matter involving a child, Courts are obliged to give priority to the best interest of the said child. Section 44(2) of the Children Act 2001 provides:-“(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”.

19. This is a child who lost her mother at early age. Her father has admitted and expressed that he is not be able to give this child the best care and attention. The Applicant and her family took the child in and have raised her to date. The child has been living with the Applicant and her family in Utawala Nairobi and the Applicant made financial provision for the child’s education and catered for all her needs. This is a kinship adoption thus the child will remain within the same family unit and will be able to interact with her biological siblings and other relatives.

20. I was able to see and talk to the child online. She was a neat, healthy, and happy child who was obviously very comfortable with the Applicant. The child has lived with the Applicant and her family since the year 2019. This is the only family she knows.

21. A home visit was carried out which it revealed that the Applicant lives in Utawala Estate Kibiku Road in a two bedroom bungalow. The house is served by grid electricity and local authority piped water. The house was clean and well kept. The Applicant has engaged a Nanny to assist in caring for the child.1. The various reports filed in court all recommend the adoption. I am satisfied that this adoption will serve the best interests of the subject child. Accordingly I allow this application and make the following orders:-i.The Applicant JNM is authorized to adopt the child known as ASN.ii.Upon adoption the child will be known as ASN.iii.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.JWM is appointed as Legal Guardian of the child.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. .........................MAUREEN A. ODEROJUDGE