In re O M N alias M K (Baby) [2017] KEHC 2752 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

ADOPTION CAUSE NO.5 OF 2016

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

AND

IN THE MATTER OF BABY OMN alias MK (CHILD)

JUDGMENT

1. By the application brought by way of originating summons dated 22nd February 2016, the applicant, HCK, seeks to be authorized to adopt the male child currently identified and known as OMN alias MK.

2. The applicant was born in 1961 and is single.  She has a biological child, LC, whom she gave birth to after high school.  LC was born on 1st May 1986 and is married with one child.

3. The child the subject of these proceedings is OMN, a male child presumably born on 14th June 2008.  He was found abandoned on the streets of Molo town when he was a year old, and was rescued by the director of Arise and Shine Children’s Home on 29th August 2009.

4. A report was made at the Molo Police Station and recorded under Occurrence Book Number [Particulars Withheld].  The child was admitted to the Arise and Shine Children’s Home on that day and committed to the home under Protection and Care Case No.1009 of 2009.  The committal to the home was renewed on 17th October 2011 under Protection and Care Case Number 262 of 2011.

5. According to a letter from the Molo Police Station dated 28th November 2013, no one had gone to claim the child since he was found abandoned four years before.  He was therefore declared free for adoption by the Kenya Children’s Homes Adoption Society on 19th December 2013 and a freeing certificate Serial No. [Particulars Withheld] issued pursuant to section 156 (1) of the Children Act.  The child was placed with the applicant on 21st December 2015.

6. On 2nd June 2016, this court appointed AR as Guardian ad Litem in respect of the child.  The court also directed the Director, Children Services, to investigate and file a report on the fitness of the applicant to adopt the child.

7. In his report filed in court on 16th January 2017, the Kericho Sub-County Children Officer notes that he paid a home visit to the applicant on 6th January 2017.  He noted that the child has bonded well with the applicant and her family members, and is well taken care of. The applicant, who works for the [Particulars Withheld] Company, has a three acre parcel of land on which she farms and keeps dairy cattle.  In his opinion, the applicant is fit to adopt the child.

8. AR, the Guardian ad Litem, filed a report in court which is undated.  He notes that the applicant is loving and caring and has been able to educate her biological daughter up to University level.  She also lives with her own elderly mother whom she takes care of very well.  The Guardian ad Litem observes that the applicant had bonded well with the child and has provided him with a very conducive home environment and taken him to school.

9. I have considered the application before me and the documents in support.  I note that the child was abandoned when he was one year old, in 2009, and no one ever went to claim him.

10. The applicant is single, aged 56, and has a biological child of her own.  While she is a sole female applicant seeking to adopt a male child, I believe, notwithstanding the provisions of the Children Act that a sole female applicant should not, in the absence of special circumstances, be authorized to adopt a male child, that she is fit to adopt the child. This is in light of the guidelines issued by the National Adoption Committee which allow for such an adoption if the applicant has another child or if there is no one else willing to adopt the child.  I believe both these conditions apply to the present situation.

11. Accordingly, I hereby authorize the applicant, HCK, to adopt the male child currently identified and known as OMN alias MK.  The child shall be renamed MK and his date of birth shall be 14th June 2008.  He is declared a citizen of Kenya.

12. The Registrar General is directed to make the appropriate entries in the Adopted Children’s Register.  The Registrar of Births and Deaths shall issue a birth certificate in respect of the child.

13. WKC and EC are hereby appointed legal guardians of the child should any misfortune befall the applicant.

14. The Guardian ad Litem is hereby discharged.

Dated, Delivered and Signed at Kericho this 6th day of October 2017.

MUMBI NGUGI

JUDGE