In re of AW (Minor) [2017] KEHC 6641 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO. 110 OF 2014

IN THE MATTER OF ADOPTION OF AW (MINOR)

JUDGMENT

JNK (“the Applicant”) is a sole female applicant. The Applicant had been in relationship for ten years which ended as a result she could not bear child of her own. She has no biological children of her own, thus whishes to adopt a child.

The Applicant seeks by her application to be allowed by this Court to adopt Baby AW (hereafter “the child”).

The child who is the subject of the present adoption proceedings found abandoned by her mother at Kiambu maternity ward on 19th December 2006. A report on the matter of the abandoned child was made at Kiambu Police Stationvide OB No. [particulars withheld]. The Police’s letter revealed that efforts to trace the child’s biological mother borne no fruits.

The child was referred to St. Anthony Children’s Home where they she was admitted on the same day for care and protection and this is evidenced by the Child’s admission form into the said children center.

The Senior Resident Magistrate Children's Court sitting at Limuru, Vide P& C Case No. 1 of 2007 on October, 2007.  In accordance with Section 119of theChildren Act 2001, committed the child to St. Anthony Children’s Home. The committal was renewed on 26th October, 2007 at the same court until the child attained the age of majority.

The child was placed under custody of the Applicant on 20th December, 2012 for mandatory bonding prior to adoption.  The child has since then been in the continuous custody and care of the Applicant.

According to correspondence from relevant police authorities at Kiambu Police Station, efforts to trace the parent (s) more than 6 months after abandonment had proved futile. A report to that effect has been filed in Court.  Thus, this Court dispenses with the consent of the child’s biological parents to the proposed adoption of the child by the Applicant. The adoption society, Kenya Children’s Home, issued a Certificate declaring the child free for adoption pursuant to Section 156(1) of the Children Act. The said freeing certificate is no. 0904 and the same is dated 13th November, 2012.

In an application filed on 26th September, 2014 the Applicant sought among others, orders from this Court that WN be appointed as the Child’s Guardian ad litem, and that the Director of Children’s Services be ordered to investigate the Applicant’s suitability to adopt the child and submit a report within 45 days. She further sought for an order that upon adoption the child be known as AMN.

The Applicant also sought to have the Court appoint her sister, AMM as the Child’s Legal Guardian. On 26th September 2014, this Court issued an order appointing WN  as the Child’s Guardian Ad litem, and further directing the Guardian Ad litem and the Director of Children’s Services to file their respective reports in Court.

Pursuant to Section 156(1)of theChildren Act 2001, before this matter came up for hearing, Kenya Children’s Home, the relevant adoption society, prepared and filed in Court a favourable report in respect of the proposed adoption of the child by the Applicant. Another report in respect of the proposed adoption of the child by the Applicant was prepared by the Director of Children’s Services, and this report was similarly in favour of the proposed adoption.

The Guardian Ad litem, CSM, also filed the statutory report made under Section 160(2)of theChildren Act 2001 in which she noted that the proposed adoption of the child by the Applicant is in the best interest of the child.

All the Statutory Reports that have been filed in respect of the proposed adoption of the child by the Applicant have recommended that this Court allows the Applicant to adopt the child. This Court has evaluated the facts of this adoption. This is a local adoption. It is evident that the Applicant has fulfilled all the legal requirements relative to the adoption of the child.

The consent of the biological parent(s) of the child was dispensed with since the child was abandoned at birth. This Court has satisfied itself that the Applicant is qualified and able to take care of the child.  The home visits by the Guardian Ad litem, the Adoption Society and the Director of the Children’s Services established that the Applicant has the financial and emotional capability to provide for the upkeep and education of the child. This Court observed the Applicant with the child in Court and it was evident that in the period that the Applicant has had the custody of the child, the child has bonded well with her. The child considers the Applicant to be her mother.

On the basis of a careful examination of the documents presented before me as well as the observations made therein, this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicant. Hence, this Court allows the Applicant’s application. The Applicant, JNK, is hereby allowed to adopt Baby AW. Henceforth, the child shall be known as AMN. Her date of birth shall be 19th December, 2006. Her place of birth shall be Kiambu District Hospital within Kiambu County. She is presumed to be a citizen of Kenya by birth.

The Applicant’s sister, AMM filed a Supplementary Affidavit on 29th April, 2016 stating that she shall be the Legal Guardian of the Child should such eventuality arise. This Court directs the Registrar General to duly enter this order in the Adoption Register. The Guardian Ad litem is hereby discharged.  It is so ordered.

DELIVERED DATED AND SIGNED IN OPEN COURT ON 13TH MARCH, 2017.

M. W. MUIGAI

JUDGE

IN THE PRESENCE OF: