In re SHA alias LH (Baby) [2022] KEHC 10881 (KLR)

In re SHA alias LH (Baby) (Adoption Cause E026 of 2021) [2022] KEHC 10881 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10881 (KLR)

Republic of Kenya

In the High Court at Machakos

Adoption Cause E026 of 2021

MW Muigai, J

May 4, 2022

IN THE MATTER OF THE CHILDREN’S ACT IN THE MATTER OF THE ADOPTION OF BABY SHA ALIAS LH DLNN.....................APPLICANT

Judgment

1. Through an Application by Originating Summons dated 9th November and filed on the 12th November, 2021, the Applicant DLNN sought the following prayers: that the Applicant be authorized to adopt Baby LH the child in this matter, that SNO be appointed as the Guardian ad litem in this case; that the Director of Children’s Department to investigate the case and file a report. On 15/12/2021 SNO appeared in Court as the proposed guardian ad litem Court and was appointed as such for the purposes of this adoption and was directed to prepare a Report and present it in Court. The Court also directed the Adoption Agency and the Director Children Services to avail their report in Court. the Legal guardian also to attend Court.

2. On 31st January, 2022 an amended originating summons on the application for adoption order was filed seeking the following prayers: - that DLNN (Applicant) be authorized to adopt the child currently known as Baby LH; that the child’s date of birth be declared to be 6th August, 2021 and his place of birth declared to be Nairobi County; that the child be presumed to be a Kenyan citizen; the guardian ad litem be discharged and Confred NN (the Applicant’s friend) be appointed child’s legal Guardian in the event that the Applicant herein is incapacitated or in any way unable to discharge their parental obligations; that the Registrar General be directed to make the appropriate entries in the Adopted children Registrar and issue a certificate to that effect.

3. The Application is supported by the Applicant’s statement stating that:- that she is married and a single applicant with consent from the husband to adopt; that she is a Grants Manager with the United Nations Office for Project Services; that she does not have a biological child of her own; that she lives in Kitengela in a gated compound in a comfortable environment which is suitable for nurturing the child and ensuring his full development; that she is a Christian and intends to bring up the infant within the Christian community.

4. The child subject of these proceedings Baby LH is presumed to be born in Kenya on 6th august, 2020 at Kenyatta National Hospital and was abandoned on 8th August in the same facility. The baby’s mother SH abandoned him after delivery in ward 1A of Kenyatta National Hospital. The matter was reported at the Kenyatta National Hospital police post as a case of abandonment vide OB Number 42/8/8/2020. The mother was contacted through her mobile phone No. 072xxxx on several occasions but the number was out of reach.

5. Nairobi County Children’s Office sought placement for the child at New Life Home Trust where he was admitted on 25th August, 2020. On 9th December, 2020 Baby LH was committed to New Life Home Trust – Kilimani for Care and Protection by the Children’s Court at Nairobi Care Case No. 306 of 2020 for a period of 3 years.

6. On 25th March, 2021 Kenyatta Police Post issued a final police letter stating that their investigations to trace the baby’s kin had been done but had not traced and that nobody had gone to claim the child hence appropriate action in the best interest of the child can be taken.

7. On 16th and 22nd April 2021, Buckner Kenya Adoption Services contacted the child’s mother, one Sumaya Hassan through her mobile phone but she could not be reached. New life also confirmed that during the child’s six months stay in the institution no relative had ever turned up to claim the child and neither did they receive any information from the police department concerned regarding any claimant. On deliberation of a meeting by the Case Committee at Buckner Kenya Adoption Services held on 30th April, 2021 declared baby LH free for adoption vide Certificate No. xxxx. The following documents had been availed by New Life Home Trust for baby LH:- Medical Social Workers Report on abandoned baby dated 13th August, 2020.

Placement letter dated 17th August 2020

Kenyatta National Hospital discharged summary on 18th August, 2020

Birth Notification letter dated 25th august 2020

Home placement form dated 25th August 2020

Rescue form dated 25th August 2020

Admission form on 25th August 2020

Initial police letter dated 28th August 2020

Medical particulars form dated 17th March 2021

Request for final police letter by New Life Home dated 24th March 2021

Kibra Sub-County Childrens Office Report to Court dated 9th November 2020

Committal order P7C no. 308 dated 9th December 2020

Final police letter dated 25th March 2021.

8. The Director of Children Services through a Report dated 21st December, 2021 in respect of the proposed adoption of the child by the Applicant was prepared by Mr. Ezekiel Kimani Assistant Director Nairobi Children’ Court. The report contains family and professional background information of the Child’s Adoptive Parent. The Applicant is married to one MF and they do not have any child of their own. She is applying for this adoption as a single Applicant. The Applicant is stable financially living in her own 3 bed-roomed house at Nyayo Estate.

9. The Child subject of these proceedings was declared Free for adoption on 30/04/2021 vide Certificate Number xx from/by Buckner Kenya Adoption Services. On observation the Applicant has bonded well with the minor and has provided a good environment for the child to grow and flourish. They recommended the adoption as the Applicant has fulfilled all the legal requirements for local adoption, she has proved to be capable of taking on parental responsibilities over the child in this matter, she has been found fit, she is financially secure to parent the child. The director Children’s services recommends her to adopt the child on condition that her husband’s written consent be filed.

10. The Guardian ad Litem, Sandy Nyanchera Ogechi who was appointed as the Guardian ad Litem on 15/12/2021 for the purposes of this Adoption told the Court that she had filed a report dated 17th January, 2022. She stated that the Applicant is the Grants Manager at [particulars withheld], she is a Christian and a member of the Holy Basilica, that she is married to one MF and the couple do not have any child of their own due to applicant’s reproductive issues, that her family have embraced the adoption and have shown love to the child ever since he was placed under the care of the applicant, she has no health issues, she has no criminal records, she has a stable income to sustain and take care for the child, the Applicant has always wanted to have a child but due to her inability to conceive she decided to adopt a child and give the child a loving family.

11. The child subject herein was placed in the care of the Applicant in August 2021, the child has bonded well with his new family and will join playgroup soon, the Applicant lives in her own house at Nyayo Estate - a 3 self-contained bedroom and they also have a playing area within the compound and backyard, that the child will inherit whatever the applicant has, the child will also be included in the applicants’ [particulars withheld] pension and [particulars withheld] pension. The Applicant owns the house they live in and also owns a ¼ acre plot at Migaa in Kiambu County. On 29/03/2022 she appeared in Court and stated that during her visit at the Applicant home on 19/12/2021 she found the applicant, her husband and 2 sisters and found that the minor had bonded well with the family. The Guardian ad Litem fully recommended the Adoption.

12. Buckner Kenya Adoption Services Agency filed their Report dated 5th May, 2021. The Applicant was placed with the child in August, 2021 and the Agency conducted follow-up session and found the child has adopted well with the Applicant. The Agency recommended the Adoption. The report contains family and professional background information of the Child’s Adoptive Parent. The Adoption is a single application by a Kenyan lady who is married but applying as a single applicant and has received consent from her husband. The applicant had approached Buckner Kenya Adoption Services on 18th March 2021 and it was her 1st adoption application. The Applicant was found eligible and Case Committee sitting on 5th May, 2021 approved her application. The Applicant provided a consent letter dated 15th January, 2021 by her husband stating that he has given her consent and is in support of the adoption process in Kenya. He has committed to give the applicant and adopted child the needed support.

13. The Applicant is financially stable she earns an income of USD 10,500/. She owns several properties as well as co-owning a house with her husband in Italy. The child has bonded well with the Applicant since August 2021 and it is evident that the child has found a loving mother. During home visit they found that the applicant has a suitable abode – 3 bedroom house. She has no criminal record, her family has supported the adoption process as the Applicant has no child of her own.

14. The Legal Guardian Ms Confred NN appeared in Court on 29/03/2022 and told Court that she had already filed affidavit of consent; that she works with the Applicant and in the event of incapacity or demise of the Applicant she would step in and take over the parental responsibility of the child.

15. This Court finds that the adoption in question is in the best interest of the child as he will grow up within a family of his own instead of an institution. The Reports by the Director of Children’s Services, the Adoption Agency as well as the testimony of the Guardian ad Litem and Legal Guardian are in favour of the adoption. The Applicant have fulfilled all the legal requirements necessary for a local adoption and have been proven to be a suitable potential adoptive parent.

16. The Applicant herein DLNN was assessed by the Adoption agency Committee on 5th May, 2021 and found to be financially stable from her income in employment hence well capable of raising the child. The Applicant is well aware that an order of adoption grants the child inheritance rights to her property and she has no objection to it. The Applicant has fulfilled the prerequisite for adoption under the Children’s Act; the child was declared Free for adoption on 30/04/2021 under Section 156 of Children’s Act. The Applicant has applied to adopt as sole Applicant under Section 58 of Childrens Act. She is aged 47 years old. There is consent by the husband to support the child and adoption process. The larger family of the Applicant her sister Caroline Baraza and her friend Juliet Akoth and her husband Billy Ogonji are agreeable and support the adoption.

Dispositiona.The Applicant, DLNN is hereby authorized to adopt the child Baby SHA alias LH and the child shall therefore be known as JF.b.The Date of Birth shall be 6TH AUGUST, 2021 and the place of birth to be Nairobi County.c.He is therefore presumed to be a Kenyan citizen by birth.d.The Legal Guardian is CNN.e.The Registrar General is hereby directed to enter this order in the Adoption Register.f.The Guardian ad litem is hereby discharged.

READ AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 4th DAY OF MAY, 2022. MARGARET W. MUIGAIJUDGE