In re of baby S K [2016] KEHC 1758 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO.  8 OF 2016 (OS)

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

IN THE MATTER OF ADOPTION OF BABY S K

BY

H L AND J A K L (APPLICANTS)

JUDGMENT

1. The first Applicant H L is of Swedish origin, while the second Applicant J A K L is a Kenyan citizen.  They are in a monogamous marriage which was solemnized at the Parklands Baptist Church, Nairobi on 14th January, 2014.  They have one adopted child; J M L aged three years.

2.  The Applicants wish to adopt the child known as Baby S K a minor of female sex, through the Originating Summons dated 25th January, 2015.  They indicate that H L is a Missionary with Missionary Aviation Fellowship while J A K L is an Accountant cum housewife.  They reside in [particulars withheld]Estate and are both Christians.

3. Records indicate that the child in this matter was born on 17th October, 2014 in Moyale Sub County Hospital by a mentally challenged mother.  The matter was reported to Moyale Police Station vide OB No. 47/02/11/2014. The child was admitted at the New Life Home Trust in Nairobi on 7th December 2014.

4. On 21st January, 2015 the child was officially committed to the New Life Home Trust Nyeri by the Children’s Court vide P&C Case No. 1/15 for care and protection. A letter dated 9th July, 2015 from Moyale Police Station indicates that so far no one had come forward to claim the child.

5. The child was declared free for adoption on 7th August, 2015 by the Little Angels Network Adoption Society, vide certificate No. 001694.  He was released into the custody of the Applicants for mandatory foster care pending adoption on 11th August, 2015 upon the Applicants signing a Foster Care Agreement of even date.  Since then she has been in the continuous custody and care of the Applicants.

6. Prior to the hearing of the adoption application, Kenya for Kenya Peace Initiative Society an adoption society, prepared and filed a report in court.

7. The Adoption Society, guardian ad litem and the Director of Children’s Services have all made home visits and established that the Applicants are financially and emotionally capable of providing for the up keep and education of the child in this matter.

8. The Director of Children’s Services also filed a report dated 23RD May, 2016 recommending the adoption for reasons that the child stands to gain the opportunities provided by becoming the son of the Applicants and growing up in a loving  home and with a sibling rather than growing up in an institution.

9. The guardian ad litem, I W also filed a report that was favourable and recommended the adoption of the child by the Applicants. It was her opinion following home visits that the child was being brought up in a proper and fit manner and had adapted to the new environment well.

10. The child was in court during the hearing and the court observed that she appeared to have bonded well with the Applicants.  She was jovial and related well with both Applicants.

11. Of significance is the fact that the orders sought by the Applicants relate to a child.  In law, in any matter concerning a child, the best interests of the child are paramount.  Article 53(2)of theConstitution provides the guiding principle on this question as follows:

“A child’s best interests are of paramount importance in every matter concerning the child.”

The other pertinent law is the Children Act No. 8of 2001 and in particular Section 4(3) thereof.

12. This is a local adoption where the Applicants in my opinion fulfil the requirements for local adoption under the Children Act, 2001.  They have proved during the placement period prior to adoption that they are capable of taking on the challenge of raising the child in this matter.  Secondly they 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.

13.  From the foregoing, this court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicants.  Reasons wherefore I allow the prayers sought in the Originating Summons dated 25th January, 2015 and order as follows:

i. The Applicants, H L and J A K L are hereby allowed to adopt BabyS Kwho shall henceforth be known as J H L.

ii. Her date of birth shall be 17th October, 2014. She is presumed to have been born in Kenya in accordance with Article 14 (3)of theConstitution, and the place of birth shall be Moyale.

iii. I M W (A friend to the Applicants) is hereby appointed legal guardian 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. he guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 27th day of October, 2016.

……………………………….

L. A. ACHODE

JUDGE

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