W M K & A W N [2016] KEHC 3950 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ADOPTION CAUSE NO.  76 OF 2015 (OS)

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

IN THE MATTER OF ADOPTION OF BABY N

BY

W M K AND A W N (APPLICANTS)

JUDGMENT

1. The Applicants WMK and AWN are in a monogamous marriage which was solemnized at Thika on 31st March 2007.  They had three biological children, two of whom have died and only VK who was born on 4th June, 2009 remains.  They wish to adopt the child known as Baby N a minor of female sex, through the Originating Summons dated 23rd March, 2015.  They indicate that WMK is an Accountant with Tiedemann Globe Incorporation while AWN is a business woman. They reside in Ruiru and are both Christians.

2. Records from Kawangware Chief dated 21st December, 2012, Muthangari Police Station dated 3rd January, 2013 and Children’s Officer Starehe District dated 11th February 2013 respectively, indicate that the child who is the subject of this adoption proceedings together with her twin brother were found abandoned within Nairobi River environment.  They were rescued by two youth namely Lydia Katenge and Rose Namwano who were cleaning the river on that day. The report was booked via OB No. [Particular Withheld] at the Muthangari Police Station. The child in question was taken to Riruta Health Centre for medical check-up where he was found to be in good medical condition.

3. On the same day the child was referred to Missionaries of Charity Mother Teresa’s Homes, Huruma for care and protection.  On 29th April, 2013, the child was officially committed to the same home by the Senior Resident Magistrate Nairobi Children’s court vide P & C Case No. 108/2013.  A Letter dated 10th September, 2012 from Muthangari Police Station indicates that the biological parents of the child were not traced, despite investigations, nor did anyone come forward to claim the child.

4. The child was declared free for adoption on 30th October, 2013 by the Kenyans to Kenyans Peace Initiative Adoption Society, vide certificate No. 360.  She was released into the custody of the Applicants for mandatory foster care pending adoption on 7th February, 2014.  The Applicants also signed a Foster Care Agreement dated the same day. Since then she has been in the continuous custody and care of the Applicants.  Prior to the hearing of the adoption application, Kenya Children’s Home Adoption Society, prepared and filed a report in court.

5. 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.

6. The Director of Children’s Services also filed a report dated 17th July, 2015 recommending the adoption for reasons that the child stands to gain the opportunities provided by becoming the daughter of the Applicants and growing up in a family set up rather than growing up in an institution.  The guardian ad litem SO, also filed a report that was favourable and recommended the adoption of the child by the Applicants.

7. The child was in court during the hearing and appeared to have bonded well with the Applicants.  She was jovial and related well with the Applicants.  Both Applicants’ families support the adoption.

8. More importantly, the orders sought by the Applicants relate to a child.  In law, in any matter concerning a child, the best interests of a 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.

9. 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 23rd March, 2015 and order as follows:

i. The Applicants WMK and AWN are hereby allowed to adopt baby N who shall henceforth be known as WNM.

ii. Her date of birth shall be presumed to be 21st December, 2012. She is presumed to have been born in Kenya in accordance with Article 14 (3)of theConstitution, and the place of birth shall be Nairobi.

iii. CKM and PMK (friends to the Applicants) respectively are hereby appointed legal guardians of the child in the event that the Applicants die or are incapacitated by ill-health.

iv. I direct the Registrar General 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. The guardian ad litem is hereby discharged.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 28th day of July 2016.

…………………………………….

L. A. ACHODE

JUDGE

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