In re S D Alias D M (Child) [2017] KEHC 1248 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ADOPTION CAUSE NO 17 OF 2015

IN THE MATTER OFS D Alias D M

C M K……………………….1ST APPLICANT

C K C.………….…….……..2ND APPLICANT

JUDGMENT

The 1st and 2nd Applicants are a male and female adult of sound mind, and are both Kenyan nationals aged 46 and 37 years respectively at the date of the application herein. The Applicants have been married to each other since 9th December 1995, having solemnized their marriage under the Marriage Act. The Applicants wish to adopt a male child known as S D alias D M (hereinafter referred to as Baby S), and have moved the Court in this regard by way of an Originating Summons dated 28th July 2017, brought under sections 154, 156, 157, 158, 159, 160, 162, and 163 of the Children Act.

The Applicants sought the following orders in the said Originating Summons:

(i) That the requirements of section 158(4)(a) of the  Children’s Act be waived as provided for by section 159(1) of the Act.

(ii) That S M be appointed Guardian Ad Litem in this cause.

(iii) That the Applicants be authorized to adopt baby S D alias D M and the baby be known as S M C.

(iv) That C  N be appointed the legal guardian of the child.

(v) That  the Director of Children’s Department do investigate the case and file a report.

(vi) That the Registrar-General do make an entry in the Adopted Children 's Register recording the adoption.

The proposed guardian ad litem and legal guardian also filed affidavits in Court giving their consent to their respective appointments.

Prayers (ii) of the said Originating Summons were granted during a hearing held on 4th April 2014, after an examination by the Court of the proposed guardian ad litem, as was prayer (v). The Court at the said hearing also admitted as evidence a declaration report by Little Angels Network Adoption Society dated 21st August 2013 and  filed in Court on 18th November 2015.

The guardian ad litem’s presented her report dated 25th October 2016 at a hearing held on 27th October 2016, whereat C  N was also examined by the Court and confirmed her consent to be appointed as legal guardian of Baby S, and her understanding of her responsibilities. A report dated 26th July 2017 by Emily Kimanzi, the Machakos sub-County Children Officer that was filed in court on 2nd August 2017, was also presented and adopted by the Court as her evidence during  a further hearing held on 2nd August 2017.

A summary of these adoption proceedings is as follows as set forth in the various pleadings and reports filed in Court. Baby S is a male child who was born on 28th March 2012 at Chuka District Hospital. On 17th May 2012, his mother, one C G , absconded from the hospital leaving the baby abandoned.  The Assistant Chief of Gitareni Sub-location where the said C G came from, one S  M, was informed of the incident. His efforts to trace the mother did not bear fruit, as confirmed by his letter dated 18th June 2012 that was filed in Court.

The incident of abandonment was also reported at Chuka Police Station on 29th June 2012. Baby S was subsequently placed under the care and protection of New Life Home Trust following a court order issued on 29th June 2012 by the Chuka Children’s Court,  and later transferred to New Life Home Trust – Kilimani. A letter from the Officer Commanding the Chuka Police Station dated 23rd January 2013 that was filed in Court confirmed that since the incident of abandonment was reported,  no person had come to claim the child.

Baby S was placed with the Applicants on 21st March 2013 pending adoption, and has lived with the Applicants since then. Baby S was also declared free for adoption by the Little Angels Network Adoption Society  by their certificate No. [particulars withheld] dated 21st August 2013.

The said Adoption Society in its reports filed in Court observed that the Applicants’ application to adopt Baby S  is motivated by the fact that they do not have a biological child, and want to share their love and provide a home and family for the child. The Applicants were also found to be in a stable marriage, and to be emotionally and financially prepared and able to bring up a child.

The Machakos Sub-County Children’s Officer in her report also observed that the Applicants are financially capable of providing for the child, and have provided a conducive home environment for Baby S, and that from the home visit she found that Baby S felt at home and had bonded with the Applicants. Lastly, the guardian ad litem in his report stated that the Applicants were good parents and have taken good care of Baby S.

Having evaluated the facts of this adoption application, I note that it is seeking a local adoption, and that the Applicants are joint married applicants who are at least 25 years of age and under the age of 65 years, and who wish to adopt a male child. They have therefore met the requirement set under Section 158 (1), (2) and (3) of the Children Act. In addition, since Baby S was found abandoned and no one has claimed him so far, the consent required to be given under section 158(4) of the Children Act can be dispensed with by this Court, pursuant to the provisions of section 159(1)(a)(i) of the Children Act.

The Applicants have therefore fulfilled all the legal requirements relating to the adoption of Baby S. This court is satisfied that the Applicants are qualified and able to take care of the child. The home visits by the guardian ad litem, the Adoption Society and the Children Officer established that the Applicants have the financial and emotional capability to provide for the upkeep and education of the child. The reports filed in Court pursuant to these visits also do recommend the Applicants’ adoption of Baby S.  Lastly, I observed the Applicants with Baby S in court, and it was evident that they had bonded well and that Baby S is well taken care of.

This Court therefore forms the opinion that it would be in the best interest of Baby S to be adopted by the Applicants. Consequently, the Applicants shall assume all parental rights and duties of the biological parents in respect of the adopted child, and shall treat the adopted child as if he was born to them. The Applicants have also been made aware that once the adoption order is made it shall be final and binding during the lifetime of the child, and that the child shall have the right to maintenance and to inherit their property. The adoption order once made is absolute and irreversible, and the Applicants cannot give up the child owing to any subsequent unforeseen condition or other changes in the child.

I accordingly allow the application for adoption and order as follows:

1. The Applicants, C M K and C K C are hereby allowed to adopt S D  alias D M.

2. The child shall henceforth be known as S M C.

3. The consent of the biological mother of the child is hereby dispensed with in accordance with section 159(1)(a)(i) of the Children Act, since her whereabouts remain unknown

4. As the child was born and  found abandoned in Kenya, he is hereby declared a Kenyan citizen by birth.

5. C N shall be the legal guardian of the child should such eventuality arise.

6. The Registrar-General is directed to enter this adoption order in the adoption register.

7. I hereby forthwith discharge the guardian ad litem.

It is so ordered.

Dated, signed and delivered in open court at Machakos this 2nd day of October 2017.

P. NYAMWEYA

JUDGE