In re CKA aka CFO (Child) [2022] KEHC 3122 (KLR)

In re CKA aka CFO (Child) (Adoption Cause 12 of 2021) [2022] KEHC 3122 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3122 (KLR)

Republic of Kenya

In the High Court at Nakuru

Adoption Cause 12 of 2021

TM Matheka, J

May 5, 2022

In the matter of

Coo

Applicant

Judgment

1. By an amended Originating Summons dated 26th November 2021 brought under sections 154, 156(1) ,158(1) a, 4(a), 159(4), (6), (7), (8)a, 160(1),(2),162,163,164(1) and 170 of the Children Act No.8 of 2001 and Section 24 of the Interpretation and General Provisions Act, cap 2 Laws of Kenya, the Applicant seeks to adopt the child CKA.

2. The Applicant was born on or about 3rd July 1988 and he is a resident of [Particulars Withheld] Estate within Nakuru County. He is married to LKM since the year 2012 and seeks to adopt the infant herein who was born on or about 31st July, 2008 on grounds that the infant is a biological child of his wife and his biological father whose whereabouts are unknown to date abandoned him before he was born.

3. The Applicant has other two biological children with his wife namely; JA aged 6 years & IM aged 3 years old. He avers that the minor herein has been under his care and control for more than eight(8) years now and that he is physically, emotionally and medically fit and financially able to parent the child.

4. This court on 4th November 2021 directed that the report from Director of Children services (DCS) to be filed. The said report was duly filed on 10th January 2022.

5. The matter proceeded by way of viva voce evidence on 21st February 2022.

6. PW1 MNG, the guardian ad litem, testified in support of this Application. She stated that she has known the applicant and his wife for over a decade and that the minor has a good relationship with the applicant.

7. PW2 CAO, the Applicant, testified that he has lived with the minor herein for almost ten (10) years. He said that he got married to his wife LKM under Kamba customs and that the biological father of the baby has never been involved in the upbringing of the child. He prayed that he be allowed to adopt the baby and take up full parental responsibility.

8. PW3 LKM mother to the baby confirmed she got married to the Applicant under Kamba Customs. She confirmed that she and the Applicant have together with the child for about ten (10) years and has been taking care of him as his father. She also confirmed that her family and the applicant’s family are receptive of Applicant’s intention to adopt her child. It is her prayer that this application be granted in his favour.

Issues For DeterminationWhether the Applicant is fit to adopt the child and whether adoption is in the best interests of the child.

Analysis & Determination 9. A perusal of the evidence on record indicates that the child has been in continuous care and control of the Applicant for a period of about ten (10) years which is more than the statutory three (3) months required under Section 157 of the Act. The Applicant’s age vis a vis the age of the child is in compliance with Section 158 of the Act.

10. The Applicant understands his parental responsibility over the child and his parents are receptive of his intention to adopt the minor herein. There is evidence that the minor has a good relationship with the Applicant.

11. The report from Director of Children Services dated 6th January 2022 and the guardian ad litem statement dated 7th March 2022 leaves no doubt, that the applicant is a suitable to care for the subject child.

12. I got an opportunity though brief to interview the child and to observe them while in court and it was apparent that they have a close relationship.

13. On whether the adoption of the child herein is in his best interests, there is evidence that the applicant has been taking good care of the child and providing for his basic needs. The child appears to be contented with staying with the applicant.

14. The applicant has demonstrated, and this is corroborated by the child’s mother and the reports before court that the applicant has continued to take care of the welfare of the child.

15. In Re Baby PSM[2020] eKLR, the court observed that:“The best interests of a child principal is the key consideration in determining the nature of any decision to be taken touching on the affairs of a child. This is a paramount requirement under Article 53(2) of the Constitutionand Section 4(2) and (3) of the Children’s Act (see Re of Baby KR (2015) eKLR 2015. Similar position was held in the case of In Re CA and KA (both minors)(2014) eKLR where the court held that:-“It is therefore not in doubt that when a court determines any question with respect to:-The upbringing of a child; or the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.”

16. The Applicant demonstrated that he has the psychological and emotional capacity as well as the material resources to raise the child as his own a loving home environment. He also understands that the adoption order is final and binding during the lifetime of the child and that the child shall have the right to inherit his property alongside his biological child.

17. He proposes to name the child CFOB.

18. The Applicant nominated his wife LKM to be the legal guardian of the child.

19. In the circumstances of this case it would be in the best interests of the child to be adopted by the Applicant.

20. From the foregoing I find that all the legal requirements for the adoption have been met. The following orders do issue: -i.The Applicant COO be and is hereby allowed to adopt CKA who shall henceforth be known as CFO.ii.LKM be and is hereby appointed legal guardian of the child.iii.The Registrar General to make the appropriate entry in the Adoption Register and to issue the child with the requisite certificate in the name of CFO.iv.MNG, the guardian ad litem is hereby discharged.

21. Orders accordingly.

**DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH MAY, 2022MUMBUA T MATHEKAJUDGEIn the presence of;CA EdnaCounsel for Applicants: Ms. Mugweru