In re MW (Child) [2019] KEHC 1351 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 110 OF 2019 (OS)

IN THE MATTER OF THE CHILDREN ACT NO. 8 OF 2001

IN THE MATTER OF ADOPTION OF MW

BY

LWK AND JKK

(APPLICANTS)

JUDGMENT

1. The Applicants LWK and JKK are in a monogamous marriage which was solemnized under the African Christian Marriage and Divorce Act (CAP. 115) in Nairobi on 8th April, 2000. They have three (3) biological children of their own and three (3) adopted children. They wish to adopt the female child known as MW through the Originating Summons dated 2nd August, 2019.

2. From the pleadings, the court gathers that both Applicants are Kenyan citizens who have resided in Kenya since birth. Copies of their respective identity cards are on the record. They currently live and work for gain in Nottingham Maryland in the United States of America (USA) where the male Applicant works as a nurse while the female Applicant works as a financial advisor. They also engage in farming activities on their parcel of land in Kiganjo area in Kenya known as Naromoru/Naromoru Block [xxxx]. Both Applicant profess the Christian faith.

3. The child who is the subject of this adoption is a niece to the Applicants having been borne by the Female Applicant’s sister JNG who died on 4th May, 2019. Following her biological mother’s demise, the minor was left with no immediate family in Kenya since her three (3) siblings had previously been adopted by the Applicants and live in the U.S.A. The minor has however been living with her relatives in Chaka, Nyeri County in a house belonging to the female applicant. The identity and whereabouts of the biological father of the child are unknown.

4. Prior to the hearing of the adoption application, Change Trust Adoption Society prepared and filed a report dated 20th June, 2019. They also issued a Certificate of Serial No. [xxxx] declaring the child free for adoption. The guardian ad litem EWG filed a report dated 25th November, 2019 which was favorable and recommended the adoption of the child by the Applicants.

5. An officer from the office of the Director of Children’s Services filed a report dated 25th November, 2019. He was however unable to conduct a home visit since the Applicants live and work in the U.S.A.  He recommended the adoption for reasons that it is in the best interest of the child who is an orphan following the death of her single mother.

6. The Children’s Officer noted that the Applicants have fulfilled all the legal requirements for a local adoption as provided for in the Children Act. Further that the child will have an opportunity to be reunited with her siblings who live with the Applicants in the U.S.A. That it is therefore in the best interest of the child to be adopted by the Applicants.

7. It is important to note that the orders sought by the Applicants herein relate to a child.  In any matter concerning a child, the best interests of the child are what is of paramount importance as provided for under Article 53(2) of the Constitution and amplified by section 4(3) of the Children Act No. 8 of 2001.

8. This is a local adoption and the Applicants, in my opinion have fulfilled the statutory requirements for a local adoption. After a careful assessment of the reports filed herein I am convinced that the Applicants meet the social parameters that are considered relevant to their taking on parental responsibility and custody of the child in this matter on a permanent basis as would be conferred by the adoption order sought. Additionally, this is a kinship adoption since the female Applicant is a sister to the child’s biological mother.

9. RWN and JKM cousins of the Applicants, by a joint Guardian’s letter of Consent dated 2nd August, 2019 consented to be appointed as the legal guardians in the event that the Applicants are incapacitated and cannot care for the child.

10. The child was in court during the hearing and was jovial and appeared to have bonded well with both Applicants who appeared eager to have the minor as their child. This court has therefore formed the opinion that it would be in the best interest of the child to be adopted by the Applicants. Not only does the child gain a loving family, she also gets to reunite with her siblings and gains additional siblings.

11. Reasons wherefore, I allow the prayers sought in the Originating Summons dated 2nd August, 2019 and order as follows:

i. The Applicants, LWK and JKK are hereby allowed to adopt the female child known as MWwho shall henceforth be known as MWK.

ii. Her date of birth shall be 29th November, 2018. She was born in Kenya and the place of birth shall be Nyeri.

iii. RWN and JKM are hereby appointed the legal guardians of the child 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 Adoption Register.

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

vi. The guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATED and DELIVERED in open court this 28th day of November, 2019.

……………………….

L. A. ACHODE

HIGH COURT JUDGE