In re AZ alias GM (Baby) [2022] KEHC 1234 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

ADOPTION CAUSE NO. E001 OF 2021

IN THE MATTER OF THE CHILDREN’S ACT 2001

AND

IN THE MATTER OF AN APPLICATION BY HMG AND JWF FOR AN ORDER OF ADOPTION

IN THE MATTER OF ADOPTION OF BABY AZ Alias GM

JUDGMENT

1. By Originating Summons dated 6th March, 2021, pursuant to Sections 154, 156(1), 157(1), 158(1)A, 159(1)A, (1), (C), (4)(6)(7), 160(1),(4), 163, 164(1) & 170 of the Children Act, the applicants seek in the main appointment of a Guardian Ad Litem; appointment of FM and LWM as Guardians of Baby AZ; authorization to the applicants to adopt the infant AZ Alias GM and the appropriate entries be made by the Registrar-General in the adopted children’s register in respect of the minor herein and a Certificate of Adoption and Birth be issued.

2. The applicants who are Kenyan citizens by birth were both born in 1964. They are both teachers at [Particulars Withheld] Primary School and [Particulars Withheld] Secondary School respectively. They married under the Kikuyu Customary Law on or around 10/6/2013 and have one adult child from a past marriage. They received the baby into their custody on 28/5/2020 and have continuously taken care of her ever since.

3. The baby was found abandoned on 22/12/2017 near Chuka Police Station and she was taken to Chuka General Hospital for care pending placement. The baby was subsequently committed to Ripples International by Chuka Children’s Court on 10/1/2018.

4. After the applicants were approved to adopt the baby, the baby was declared free for adoption by Ripples International on 27/4/2019 and a certificate issued.

5. The Sub-County Children’s Officer Imenti North and the adoption officer of Ripples International Adoption Centre filed their assessment and pre-placement reports respectively on 24/2/2022 and 27/8/2021 recommending the applicants herein suitable for adoption of the baby.

6. Having carefully looked the application herein, affidavits in support and the testimonies by both applicants, the children’s officer, the adoption officer and the legal guardian, I find the issues for determination to be:

a. Is the baby herein available for adoption;

b. Have the applicants met the requisite conditions for adoption;

c. Is the adoption in the best interests of the baby.

7. The baby was abandoned on 22/12/2017 near Chuka Police Station, and to date, nobody has come to claim her. To that extent, I dispense with the requisite consent under Section 159 (1) of the Children Act. The baby was declared free for adoption on 27/4/2019 by which time she was over the mandatory minimum age limit required of a baby before adoption pursuant to Section 158 (1) of the Children Act.

8. The baby has been under the continuous foster care and control of the applicants from 28/5/2020 to date which is more than the requisite three months envisaged in Section 157(1) of the Act.

Are the applicants suitable to adopt the baby?

9. The applicants are Kenyan citizens aged between 25 years and 65 years being the mandatory age requirement for both or either applicant before adopting any baby in accordance with Section 158 (1) of the Children Act. They are fully aware of the consequences of this adoption and appreciate the same. Having been duly assessed by Ripples International Adoption Centre, they were found to be medically, emotionally, mentally, morally and economically fit. To that extent, I believe the two are suitable to adopt baby AZ Alias GM.

Is the adoption in the best interests of the baby?

10. The principle of the best interests of a child is properly captured under Article 53 (2) of the constitution that “A child’s best interests are of paramount importance in any matter concerning a child”.

11. This principle is further reinforced under Section 4(2) and (3) of the Children Actwhich provides under sub section 2 that “In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

12. Having been abandoned and now unclaimed, the baby has no known relative or family to identify with and she is clearly in need of care and protection. The applicants are both financially able to cater for the baby’s basic needs including shelter, food, clothing, education and medical care.

13. They appreciate their responsibilities and obligations towards raising the baby. The baby is guaranteed a safe home, economic, moral and psychological growth and support. The baby has been living with the applicants from 28/5/2020 to date and has fully bonded with them.

14. The applicants in their application proposed FM and LWM to be appointed legal guardians of the baby but later on by a letter dated 15/2/2022, they requested the court to instead appoint JCB as the legal guardian of the baby. JCB testified that she was the legal guardian of the child and even signed a letter on 18/2/2022 wholly accepting that responsibility.  Even though no explanation has been given for the change, I find it in the best interest of the child that JB be appointed the guardian ad litem.

15. Having appointed CJB the guardian ad litem, I have also seen the reports by Ripples International placing the child for adoption and recommending the applicants to be the adoptive parents, the child having been declared and certified as free for adoption together with the evidence led by the said applicants in court. I find that the applicants have satisfied all the requisite conditions to be allowed to adopt the minor in particular Section 159 of the Children’s Act.

16. In conclusion, the court grants the request by applicants to adopt the minor and also their desire to name and refer to the minor as GMM.

DATED SIGNED AND DELIVERED THIS 18TH DAY OF MARCH 2022

Patrick J.O Otieno

Judge

In presence of

2nd applicant

Patrick J.O Otieno

Judge