Case ID:170880

In re SB (Baby) [2021] eKLR

Case Metadata

Case Number:

Adoption Cause 147 of 2018

Parties:

In re SB (Baby)

Date Delivered:

29 Jan 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

In re SB (Baby) [2021] eKLR

Court Division:

Family

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

ADOPTION CAUSE NO. 147 OF 2018

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

OF 2001 AND THE ADOPTION RULES

AND

IN THE MATTER OF ADOPTION OF BABY SB (MINOR)

CKK ................................ 1

ST

APPLICANT

MAR ............................... 2

ND

APPLICANT

JUDGMENT

(1) Before this Court is the Originating Summons dated

11

th

October 2018

by which

CKK

(the 1

st

Applicant herein) and

MAR

(the 2

nd

Applicant) seek the following orders:-

1.

THAT

the Applicants be authorized to adopt BABY SB, to be known as ENK.

2.

THAT

BAR be appointed as the legal guardian of the child in the event of the death or incapacity of the Applicants before she is of full age and fully self reliant.

3. THAT the Registrar-General be directed to enter in the adopted children register an entry recording the adoption.

4. THAT the child be presumed to be a Kenyan citizen by birth.

5. THAT the Director of Immigration be authorized to issue the child with a Kenyan passport.

6. THAT the Court be pleased to make any further orders it deems necessary.

(2) The Summons was disposed of by way of

viva voce

evidence and the witnesses testified before Court on the on-line platform on

3

rd

December 2020.

(3)

PW1 CKK

and

PW2 MAR

(the Applicants) both of Kenyan nationality are a married couple who solemnized their union at

John the Evangelist Ch

urch in

Nairobi West

on

7

th

December 2013

. Annexed at pages

22-24

of the Summons are copies of the National Identity Card for each Applicant and at page

25

is a copy of their Marriage Certificate Serial No.

177640

. The Applicants have three (3) biological children (all minors) namely:-

(i)

EK

– born on

4

th

September 2008

in Texas, USA

(ii)

EW

– born on

12

th

September 2014

born at the Nairobi Women’s Hospital

(iii)

EA

born on

25

th

January 2016

, born at the Karen Hospital

The Birth Certificates of the three (3) children have been annexed to the Summons.

(4) The Applicants both reside and work in Kenya although the 1

st

Applicant regularly travels to work in the

USA

where he runs businesses. The 2

nd

applicant is a business lady who runs her own Cleaning Company. The couple resides with all their children (including the prospective adoptive child) in a rented house at

Karen End Estate

. They profess the Christian faith.

(5) The Applicants told the Court that although they already have three (3) biological children they desire to adopt the subject child as a way of giving back to Society by providing the child with a stable loving home. They indicate that the child has been under their care through a Fostering Arrangement signed on

16

th

January 2018

. That the child has bonded well with the entire family and has a loving relationship with the couple’s three (3) children. The Applicants state that the extended family is receptive to their plans to adopt the child and have already welcomed the child as a member of the family. Both the 1

st

and 2

nd

Applicants confirm that they fully understand the legal consequences of an adoption order and confirm that they will accord to the child all the rights and obligations due to a biological child including the right to inherit.

(6) The child in question is a girl-child who is presumed to have been born on or about

21

st

April 2017

. On

24

th

April 2017

, the child was found abandoned naked and cold by a watchman in the

Kwambira

area of

Limuru

. After being rescued the matter was reported at

Tigoni Police Station

vide

OB No. 13

of

24

th

April 2017

.

(7) Thereafter the

Limuru Children’s Court

committed the child to the

Limuru Children’s Centre

for care and protection vide

Protection and Care Case Number 19 of 2017

of

24

th

April 2017

. So far no person has come forward to claim the child and efforts by Police to trace the biological parents and/or relatives of the child have not borne any fruit. Accordingly the

Kenya Children’s Home

a Registered Adoption Agency issued a Certificate

Serial No. [Particulars Withheld]

declaring the child free for Adoption. The child was then matched with the Applicants and was on

16

th

January 2018

placed under their care and custody.

(8)

PW3 HW

was approved by the Court as Guardian ad Litem in this matter on

24

th

January 2019

. She has prepared her Report dated

12

th

November 2019

recommending the Adoption.

(9)

PW4 BR

who is the elder sister to the 2

nd

Applicant confirms that she is ready to stand in as legal guardian for the child, should the need arise. Both

PW4

and her husband

RW

have signed the necessary consents to act as legal guardians.

(10)

PW5 MR. EZEKIEL KAMAU

is a Children’s Officer. He prepared and filed in Court his Report dated

16

th

October 2019

recommending the Adoption.

(11)

PW6 MR. KAMENJU

form the Kenya Children’s Home, the Adoption Agency also filed a Report dated

21

st

November 2019

recommending the Adoption.

ANALYSIS AND DETERMINATION

(12) The Adoption of children in Kenya is governed by

The Children Act

,

Cap 141 Laws of Kenya

.

Section 159(1)

of the said

Act

provides as follows:-

“159(1) No arrangement shall be commenced for the adoption of the child unless the child is at least six (6) weeks old and has been declared free for adoption by a Registered Adoption Society in accordance with the rules prescribed in that behalf.”

(13) The subject child having been born on or about

21

st

April 2017

is now about

3

1

/

2

years old well above the six (6) week age limit provided for by the law. Attached to the Report filed on

21

st

November 2020

by Kenya Children’s Homes Adoption Society is an original copy of a Certificate Serial Number

1391

dated

3

rd

January 2018

declaring the subject child free for Adoption. Accordingly I am satisfied that all the prerequisite requirements for an order of Adoption have been met.

(14) This Court is required to assess and determine the suitability of the Applicants to adopt the subject child. As stated earlier the Applicants are a couple who have been in a stable legal marital union for the past seven (7) years. They profess the Christian faith. They are both Kenyan citizens. The Applicants have three (3) biological minor children who they have been raising and thus they are not new to parenting. Undoubtedly they are both well aware of the joys and challenges that come with raising a young child.

(15) The Applicants are both in stable business and have a net income of roughly

Kshs. 500,000/-

per month which is quite sufficient to provide for the needs of their children. A visit to the couple’s home by the Children’s Officer revealed that they live in a spacious five-bedroomed house in its own compound located at the

West End Estate

in

Karen

. The Children Officer found (and I do agree) that the house provide a conducive environment for the growth and development of the child.

(16) The Applicants have annexed to the Summons copies of their Medical Reports (

“CM-9”)

indicating that they are both in sound physical and mental health. They have also annexed copies of Good Conduct Certificates (

“CM-11”)

issued by the

Kenya Police

indicating that neither has any criminal antecedents. There is annexed a letter of consent from the proposed Legal Guardian (

“CM-12”) BR

indicating her willingness to take up parental responsibility for the child in the event of the incapacitation of the Applicants. Finally both Applicants assured this Court that they fully comprehend the legal implications of an adoption order and that they are willing to accord to the child all the rights of a biological child upto and including the right of inheritance. Based on the foregoing I am satisfied that the 1

st

and 2

nd

Applicants are suitable adoptive parents for this child.

(17)

Section 4(2)

of the

Children Act

provides as follows:-

“(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of Law administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” [own emphasis]

(18) The subject child is a girl-child who was abandoned shortly after birth. To date no person (s) has come forward to claim the said child. By way of a Final Letter dated

7

th

December 2017

the

OCS Tigoni Police Station

confirmed that all efforts to trace the biological parents/relatives of the child have been futile. As such there is no person from whom consent for this Adoption can be sought and/or obtained. Accordingly I dispense with any need for consent in terms of

Section 159(1)(a) Children Act

.

(19)

Article 44

of the

Constitution of Kenya, 2010

which deals with the question of

Citizenship Article 14(4)

provides as follows:-

“(4) A child found in Kenya who is, or appears to be, less than eight years of age and whose nationality and parents are not known, is presumed to be a citizen by birth.”

The subject child was found abandoned in Kenya. She is less than eight (8) years old. Accordingly said child is presumed to be a citizen of Kenya by birth.

(20) This therefore is a child who faced an uncertain future being raised in Children’s Homes. This adoption gives the child the opportunity to grow up in a loving, stable home environment surrounded by loving siblings and relatives. The child has now lived with the Applicants and the family for over three (3) years. Undoubtedly she has bonded with them. I was able to observe the child on the online platform. She was able to answer rudimentary questions and seemed happy, confident and carefree in the company of the Applicants. In my view this adoption would certainly serve the best interests of the child.

(21) Finally I do allow this application for Adoption and I make the following orders:-

(1) The Applicants

CKK

and

MAR

, are hereby authorized to adopt

Baby SB

hereinafter to be known as

ESNK.

(2)

BAR

is hereby appointed as the Legal Guardian of the child.

(3) The subject child is presumed to be a Kenyan citizen by birth.

(4) The Registrar General is hereby directed to make the relevant entry in the Adopted Children’s Register.

(5) The Director of Immigration to provide the child with a Passport upon fulfillment of all legal requirements.

(6) No orders on costs.

Dated in

Nairobi

this

29

TH

day of

January, 2021

.

…………………………………..

MAUREEN A. ODERO

JUDGE