In re NA alias ZAN [2023] KEHC 27183 (KLR)

In re NA alias ZAN (Adoption Cause E178 of 2023) [2023] KEHC 27183 (KLR) (Family) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27183 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Adoption Cause E178 of 2023

PM Nyaundi, J

December 8, 2023

IN THE MATTER OF THE CHILDREN’S ACT ,2022 IN THE MATTER OF ADOPTION OF NA ALIAS ZAN AND IN THE MATTER OF AN APPLICATION FOR ADOPTION BY

In the matter of

DKA

Applicant

Judgment

1. The Applicant, DKA vide Originating Summons dated 14th September 2022 has made an application for the adoption of NA alias ZAN the child herein. The applicant is not married. She is driven by the desire to grow her family by extending her love to a needy child. The applicant developed interest in adopting child after the adoption awareness that was conducted in her church by Little Angels Network. However, she has no child of her own, she desires to provide a home to a child with none.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 23th and 30th of November 2023.

3. The Applicant is Kenyan Citizen and of the Christian faith. She avers that she has the financial means and capability to take care of the Child. The applicant is lecturer at [Particulars Withheld]. She has had custody of the child since December 2017. She resides in Kitutu Chache South Constituency, Kitutu Central Location, Township Sub Location. She fully understands the consequences of an adoption order.

4. The child is female believed to have been born on 21st March 2017. The child was found abandoned at around 4. 30 am along Oriang/Oyugis road. She was about two or three days old was first spotted by IAA’s brother –in-law one TOO of cell phone number 0721XXX602 and Identify card number 23XXX823. Her brother-in-law was on his way back to Eldoret which is his work place. I took the child to her place and she later bathed and fed her. The matter was reported at Kendu Bay Police Station vide Occurrence Book Number 10

5. The police advised them to report to Children’s Office and the office later requested them to take the child home and continue taking care of her. After six weeks, I was called again by Rachuonyo Children’s Officer to take the baby to Court so that she could be handed over to a Children’s Home. During her stay with the Baby she took her for immunization and was given BCG and Polio vaccines.

6. The Rachuonyo North District Children’s Office secured a vacancy at New Life Home Trust- Kisumu where the child was admitted on 3rd May 2017 and committed on the same day. The child was committed into legal custody of New Life Home Trust-Kisumu on 3rd May 2017 vide protection and care case number 2/2017 by Senior Resident Magistrate’s Court in Oyugis for a period of three years. On 9th November 2017 the police furnished a final letter stating that no one had presented to claim the child.

7. Prior to the hearing of the adoption application, Little Angels Network prepared and filed a report dated 1st and 8th December 2017 and

8. issued a certificate serial No 001XXX declaring the child free for adoption. On 28th September 2023 the Court appointed Guardian ad litem IBK.

9. IBK the Guardian ad litem was present in court, presented her report dated 15th October 2023. She confirmed to the court that she had visited the applicant’s home. The child was well taken care of and the applicant bonded well with the child. She recommends the adoption.

10. The child attended court, she stated that she is six years old, attends [Particulars Withheld] Learning Centre. Her teacher’s name is Peter and her mother’s name is D A. They attend New Life SDA Church at Getembe. She is an adventurer. Her best colour is yellow and her favourite food is chips.

11. An officer of the Department of Children Services, Sammy Rioba was present in court and presented a report dated 17 of November prepared by Beatrice M Obutu. The report established that the child was found abandoned on 28th March 2017 at [Particulars Withheld] village, Kogweno Oriang Location in Rachuonyo North Sub County. The matter was reported to Kendu bay Police station. The child was later committed to New Life home trust through a court order on 3rd May 2017, the child was then declared free for adoption since after six months no one had claimed parentage under adoption number 001936.

12. The proposed Legal Guardian HJO attended court and confirmed she is willing to take up the role of legal guardian. The applicant is her paternal aunt.

13. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides. The court may make an adoption order on application by-(1)(a)Sole applicant; or(b)Two spouses jointly.(2)The court shall not make an adoption order in any case unless-i.the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; andii.The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

13. The Applicant is 55 years.Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:A Child’s Best interests are of paramount importance in every matter concerning the child.

14. This principle is restated Under Section 8 of the Children Act, 2022 which providesBest interests of the child. In all actions concerning children, whether undertaken.(1)By public or private social welfare institutions, courts of the law, administrative authorities, or legislative bodies-(a)The best interests of the child shall be the primary consideration;(b)The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.Section 194 (1) (c) of the Act also requires that if the adoption order is madeThe order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

15. In view of the foregoing, the court is of the considered view that it is in thechild’s best interest to be adopted by the Applicants.

16. Accordingly, I allow the prayers sought in the Originating Summons dated 14th September 2023 and order as follows:1. The Applicant DKA be allowed to adopt NA alias ZAN.2. The Child is to be known as ZAN.3. The Child be presumed to be a Kenyan citizen by birth born on the 21st March 2017. 4.HJO is hereby appointed as legal guardian of Child5. The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.6. The Director Immigration is authorized to issue the child with a Kenyan passport7. The Guardian Ad litem is discharged.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 8th DAY OF December, 2023. NYAUNDIJUDGEIn the presence of:Felgona Atieno Advocate for ApplicantSylvia Court Assistant