IN re baby TO AKA NMS (The Child) [2023] KEHC 26852 (KLR)

IN re baby TO AKA NMS (The Child) (Adoption Cause E013 of 2023) [2023] KEHC 26852 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26852 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause E013 of 2023

HM Nyaga, J

December 13, 2023

IN THE MATTER OF BABY T.O. AKA N.M.S. ( THE CHILD) IN THE MATTER OF AN APPLICATION FOR ADOPTION BY

In the matter of

SSM

Appellant

and

MK

Applicant

Judgment

1. SSM and MK (hereinafter the 1st and 2nd applicants) moved to this court through an originating summons dated 3rd April, 2023 brought under Sections 186,187,188,194,195 and 200 of the Children Act No. 29 of 2022 and Sections 1A, 1B & 3 A of the Civil Procedure Act seeking orders that;i.The Applicants be authorized to adopt Baby T.O. AKA NMS who is a Kenyan Citizen, born on 30th June 2022. ii.That upon adoption, the child be known as NMS.iii.That BMKM be appointed as guardian ad litem of the child.iv.That the Registrar General be directed to enter this Adoption into the Register of Adoptions and a subsequent Birth Certificate do issue by the Registrar of Births and Deaths in the name of NMS.

2. The originating summons is supported by a statement of particulars jointly sworn on 18th October,2023. In summary, the Applicants averred that; they are Kenyan citizens of Identity Cards No. 144##013 and 221##47 respectively. That they are married since 28th October 2022 as evidenced by their marriage certificate No. 53##02. That they have two of their own namely;i.NKS born in 2008ii.NMS born in 2011.

3. The Applicants further state that they reside at Naka, in Nakuru County. Their motivation to adopt the child herein has been prompted by their love for children and desire to give the child a permanent home and love.

4. Regarding their economic status, the 1st Applicant is an engineer and the 2nd Applicant is an advocate of the High Court of Kenya [Particulars withheld].

5. With respect to the Child, he was abandoned two days after birth by her mother at Ngong Sub County Hospital. He was rescued by a good Samaritan. The mother, identified as CAA, is said to have clearly stated that she did not want the infant. She gave a written consent dated 30th June 2022. The incident was reported at Ngong Police station vide OB NO 53/30/07/2022. On the same day through the Children’s Office, Kajiado West Sub County, the child was placed at Mahali Pa Maisha Infant Rescue Centre as a child in need of care and protection.

6. On 1st November,2022, the minor was formally committed to the said home through Protection and Care Case No E002 of 2020 Ngong Children’s Court. There being no claim by the biological mother or her relatives, the police department issued a final letter dated 24th February, 2023, confirming as such.

7. Consequently, the baby was declared free for adoption by Change Trust, a registered Adoption Agency. A declaration certificate S/No. 00610 was issued to that effect. The child was placed under the care and control of the applicants on 1st May, 2023, and has been there to date.

8. Prior to the hearing, the County Coordinator, Children Services Nakuru filed a report dated 28th November,2023 recommending the adoption.

9. The court appointed BMKM as the guardian ad litem who approved of the adoption.

10. During the hearing, the applicants expressed their desire to adopt the baby. The baby was also present in court and was in apparent good health. The Children Officer testified and extensively relied on her report, which included the sentiments of the applicants’ other children. In a nutshell, she approved of the adoption. The guardian ad litem also found that the applicants are fit to adopt the child. She also agreed to become the legal guardian of the child.

Analysis & Determination 11. Having considered the Application and materials in support, I am of the considered view that the following issues arise for determination;a.Whether the baby is available for adoption.b.Whether the applicants are fit to adopt the babyc.Whether the adoption is in the best interests of the child.

Whether the baby is available for adoption. 12. From the material presented before this court, the minor was abandoned by his mother. She was said not have wanted the child. Even after the child was placed in the Rescue Centre his mother did not claim him. None of her relatives came to claim the baby. The biological mother could not be traced after the child was placed in the Rescue Centre. Therefore, no consent could be obtained for the purpose of this adoption.

13. There is a certificate on record by Change Trust, a registered Adoption Agency, declaring the child available for adoption. All the requisite documents are in good order. The child is therefore free and available for adoption.

Whether the applicants are fit to adopt the baby 14. The applicants are Kenyan citizens thus qualifying the adoption to be a local one. They are aged above 25 years and below 65 years which is the age bracket for potential adoptive parents in compliance with Section 186(2) (a) and (b) of the Children Act 2022. All their requisite documents have been filed and are in good order.

15. Having perused reports filed by the Adoption Agency, the guardian ad litem and the Children Services Department, among others, I am of the view that the Applicants do possess the requisite legal capacity to adopt the child. Further, they understand the entire adoption process plus its future implications for themselves as a family and in particular, the need to provide the best for the adopted child all their life.

16. The applicants are Christians with no criminal records, thus an assurance that the baby will benefit from proper moral character and Christian foundation for his proper growth and development as an upright citizen. The applicants’ other children have bonded well with the child. The Applicants appeared to have extended their genuine love and affection to the child during the period they have stayed together. It is thus my holding that the applicants are fit to adopt the minor.

Whether the adoption is in the best interests of the child. 17. The Children Act 2022, under Section 194(1) (c), requires the court to be satisfied before making an adoption order that such an order would be in the best interest of the child. Further the Constitution under Article 53(2) states: -“A child’s best interest are paramount importance in every matter concerning the child.”

18. From the time the child herein was abandoned by his biological mother, no one has come forth to claim him. According to the report by the guardian ad litem the child is well settled and attached to the prospective adoptive parents. The biological children of the applicants herein have shown much love to the baby. The adoptive parents have provided shelter and financial support to the baby and are willing to continue taking care of all his needs. The baby is enjoying a comfortable life. I am therefore satisfied that the adoption herein is in the best interests of the minor.

19. Accordingly, the Originating Summons dated 18th October,2023 is allowed in the following terms:i.That the Applicants be and is hereby authorized to adopt Baby T.O.ii.That the baby shall henceforth be known as NMS (The full name to be set out in the order directed to the Registrar).iii.The subject’s date of birth shall be 30th June 2022 and the place of birth shall be Kajiado, Kenya.iv.That the Registrar General be and is hereby directed to enter this adoption order in the Adopted Children’s Register and to issue a certificate to That effect.v.That the orders appointing BMKM as the guardian ad litem are hereby revoked.vi.That BMKM is hereby appointed the legal guardian of the child under section 195(1) of the Act.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGEIn the presence of;2nd Applicant present