In re SO (Baby) & DNA & MMN [2022] KEHC 11760 (KLR)

In re SO (Baby) & DNA & MMN (Adoption Cause 2 of 2021) [2022] KEHC 11760 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11760 (KLR)

Republic of Kenya

In the High Court at Kisii

Adoption Cause 2 of 2021

REA Ougo, J

July 12, 2022

IN THE MATTER OF BABY SO AND DNA & MMN

Ruling

1. Before me is an application by the 1st and 2nd applicants DNA and MMN seeking to have KMO appointed as a guardian ad litem.

2. The applicants are residents of the U.S and occasionally come home Kenya to visit.

3. The child the subject of this adoption proceedings is baby SO. He is said to be 16 years old and is the nephew of the applicants. Little Angels Network, the adoption Agency has declared baby SO free from adoption.

4. The Children’s Act No.8 of 2021 part XII provides for the Adoption process. Section 160 of the Children Act provides for the duties of a Guardian ad litem of a child. Section 160(1) & (2) provides as follows:160. Guardian ad litem for the child(1)For the purposes of any application for an adoption order, the court shall upon the application of the applicant or of its own motion, appoint some guardian ad litem for the child pending the hearing and determination of the adoption application.(2)It shall be the duty of the guardian ad litem to—(a)safeguard the interests of the child pending the determination of the adoption proceedings;(b)investigate and apprise the court as to the circumstances pertinent to the adoption of the child in the prescribed manner;(c)make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child;(d)intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent prescribed by this Act;(e)undertake such duties as the court may from time to time direct or as may be prescribed by the rules made under this Part.(3)Where arrangements for the adoption of any child have been made by an adoption society, neither the society nor any member thereof, shall be appointed guardian ad litem of that child for the purposes of its adoption.(4)The appointment of a guardian ad litem shall expire upon the making of a final order by the court under this Part unless the court, having regard to the interests of the child, extends the period of the appoint me AAA.

5. The proposed guardian ad litem admitted that he does not stay with the applicants nor does he stay within the are the child resides. In my view the applicant will not be able to comply with the provisions of section 160(2) now that he is based in Kenya and the applicants are based in United States of America. Further is not clear the period which the applicants have spent with the minor I therefore decline to grant the orders sought.

DATED, SIGNED AND DELIVERED AT KISII THIS 12TH OF JULY, 2022. R.E. OUGOJUDGEIn the presence of:Applicants AbsentMr. Bitok AbsentMs. Aphline Court Assistant