In re MA (Baby) [2019] KEHC 1251 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 104 OF 2017

IN THE MATTER OF THE CHILDREN’S ACT NO. 8 OF 2011

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF A BABY MA

BY

L J O AND C W K

(APPLICANTS)

JUDGMENT

1. The Applicants LJO and CWK are in a monogamous marriage which was solemnized at E.H.D.C Mwiki in Nairobi on 27th November, 2010. They have no children of their own. They wish to adopt a male child known as Baby MA through the amended summons dated 13th October, 2017.

2. From the pleadings, the court gathers that the applicants LJO is a Revenue Supervisor at [particulars withheld] and CWK is self-employed. They reside in Kasarani, Mwiki area in Nairobi and both profess the Christian faith.

3. The records before the court indicate that the minor is presumed to have been born on 12th April, 2016 as evidenced in the birth Certificate serial number […]. She was reported to have been abandoned on 26th April, 2016 along Mombasa road. The matter was reported to Kenyatta Hospital Police Post where it was booked as OB No. [….]. She was admitted to Kenyatta National Hospital where she stayed for 5 ½ months and no one came forward to claim her.

4. On 10th October, 2016 the child was temporarily placed at Mahali Pa Maisha. On 6th December, 2016, the Senior Principal Magistrate sitting in Ngong’ committed the child vide P & C 49 of 2016 to Mahali pa Maisha Children’s home. On 6th December, 2016 Kenyatta Police Post issued a final letter in which they confirmed that the biological parents of the child were not traced, nor did anyone come forward to claim the child. On 4th February, 2017 the Applicants took the child for purposes of foster care with a view of adopting. A foster agreement was signed on 4th February, 2017.

5. Prior to the hearing of the adoption application, Buckner Adoption Services prepared and filed a report dated 12th April, 2016. They also issued a Certificate Serial No. […] dated 20th January, 2017 declaring the child free for adoption. The guardian ad litem W S A filed a report which was favourable and recommended the adoption of the child by the Applicants.

6. An officer from the office of the Director of Children Services conducted home visits and established that the applicants are financially and emotionally capable of providing for the upkeep and education of the child. She filed a report dated 15th April, 2019 recommending the adoption for reasons that the child stands to gain from the opportunities provided by becoming the daughter of the Applicants and that the Applicants have fulfilled the statutory requirements.

7. This is a local adoption and from the record the Applicants have fulfilled all the legal requirements relating to the adoption of the child. The consent of the biological parents was dispensed with since the child was abandoned at infancy and the parents could not be traced to give the consent. The child was in court during the hearing and appeared to have bonded well with the Applicants.

8. I have examined the evidence herein against the litmus test of the best interest of the child as required in Article 53 (2) of the Constitution and Section 4 (2) & (3) of the Children’s Act. Consequently my considered view is that it is in the best interest of the child to be adopted by the Applicants. Reasons wherefore, I allow the prayers sought in the amended Originating Summons dated 13th October, 2017 and Order as follows:

i. The Applicants L J O and CWK be and are hereby allowed to adopt Baby MA  who shall henceforth be known as JFJ

ii. Her date of birth shall be presumed to be 12th April, 2016 as evidenced in the birth Certificate serial number […]. She is presumed to have been born in Kenya in accordance with Article 14(4) of the Constitution, and the place of birth shall be Nairobi.

iii. AGK and MM are hereby appointed the legal guardians in the event that the Applicants die, or are incapacitated by ill health.

iv. The Registrar General is directed to enter this Order in the Adopted Children Registry.

v. The Director of Immigration is hereby authorised to issue the child with a Kenyan Passport.

vi. The guardian ad litem is hereby discharged.

SIGNED DATED AND DELIVERED IN OPEN COURT THIS 28TH DAY OF NOVEMBER, 2019.

............................

L. A. ACHODE

HIGH COURT JUDGE

In the presence of …………………………………………Advocate for the Applicants