Case ID:170984

In re J (Minor) [2021] eKLR

Case Metadata

Case Number:

Adoption Cause 45 of 2020

Parties:

In re J (Minor)

Date Delivered:

22 Jan 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

In re J (Minor) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Summons allowed

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. 45 OF 2020

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

AND

IN THE MATTER OF ADOPTION OF BABY J (MINOR)

MML............................1

ST

APPLICANT

ESL.............................2

ND

APPLICANT

JUDGMENT

(1) Before this Court is the Originating Summons dated

15

th

June 2020

seeking the following orders:-

1.

THAT

the Applicants be authorized to adopt BABY J to be known as EJL.

2.

THAT

JMB and his wife DMM be appointed as the legal guardians of the child in the event of the Applicants’ death or incapacity before the child reaches the age of majority and/or self-reliance.

3.

THAT

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

(2) The Summons was canvassed by way of

viva voce

evidence. The hearing took place via the online platform on

3

rd

December 2020

. The two Applicants

MML

(1

st

Applicant) and

ESL

(2

nd

Applicant) are a couple who got married to each other on

7

th

June 2015

in

Minnesota, USA

. A copy of their Marriage Certificate

MEL’9’

is annexed to the Summons. The couple has no biological children of their own. The 1

st

Applicant is of dual citizenship being

Kenyan

and

British

whilst the 2

nd

Applicant is a citizen of the

United States

but as per her Further Affidavit dated

10

th

November 2020

the 2

nd

Applicant is now a

Permanent Resident of Kenya

vide the annexed

Certificate of Permanent Residence

Serial

No.xxxxxxx

. The couple resides in Nairobi, Kenya and both work for gain in the Republic of Kenya. They both profess the Jewish faith.

(3) The child in question being a boy-child is believed to have been born on or about

25

th

February 2019

. He was found abandoned within

Narok Township

by a Good Samaritan who rescued the child and reported the matter to

Narok Police Station

vide

OB No. 7

of

9

th

March 2019

. Thereafter the child was released to the

NEST Children’s Home

for care and control. The child was eventually committed to the said Children’s Home vide the

Protection and Care Case Number 29 of 2019

. The child was then matched with the Applicants and was placed in their care as Foster Parents on

28

th

January 2019

, pending adoption.

(4)

PW3 LA

was approved and appointed as

guardian ad litem

in this matter on

8

th

October 2020

. The guardian ad litem prepared and filed in Court her Report recommending the Adoption.

(5)

PW4 GE

is from the

KKPI Adoption Society

a Registered Adoption Agency. She confirms that the said Adoption Society issued a Certificate Serial Number

669

dated

15

th

November 2019

declaring the child free for Adoption.

(6)

PW5 EK

is a Children’s Officer attached to the Children’s Department. He prepared and filed in Court the Report dated

23

rd

October 2020

, also recommending the Adoption.

ANALYSIS AND DETERMINATION

(7) The Preliminary requirements for the making of an Adoption Order are set out in

Section 156(1)

of the

Children’s Act

which provides as follows:-

“159(1) No arrangement shall be commenced for the adoption of a 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.”

(8) The child in question is estimated to have been born on or about

25

th

February 2019

. Therefore he is now about one and a half (1

1

/

2

) years old well over the six (6) week limit required by law. The child was declared free for adoption on

15

th

November 2019

by

KKPI

a Registered Adoption Agency vide the Certificate

No. 669

(Annexed to the Originating Summons dated

15

th

June 2020

).

(9) The Court is required to assess the suitability of the Applicants to adopt this child. The Applicants are a couple who have been in a legal marriage for the past five (5) years and are committed to one another. The couple has no biological children of their own hence the desire to adopt. The Applicants expressed to the Court their desire to give the child a stable and loving home. They both confirmed that they comprehend and accept all the rights and obligations arising from an order of Adoption including the right to inherit. The extended family of both Applicants are said to have welcomed their intention to adopt the child. Indeed the couple has appointed as legal guardians for the child Jeremy and Devon Bulman who are the 2

nd

Applicant’s brother and his wife. The two have signed consents accepting the said appointment and obligation.

(10) The Applicants are both permanently residents in Kenya. Although the 2

nd

Applicant is an American Citizen, there is evidence that she is now a Permanent Resident in Kenya and holds a Certificate of Permanent Residence dated

22

nd

October 2020

. This Court is fully aware of the fact that in the year

2014

a moratorium was placed on International Adoptions from Kenya. However I find that this moratorium would not extend to the 2

nd

applicant who is an American citizen because she now holds a Certificate of Permanent Residency in Kenya. Further the fact that the 2

nd

Applicant has invested in a business in Kenya persuades me that she fully intends to make Kenya her permanent home. The Applicants are both degree - holders and are gainfully employed. The 1

st

Applicant is the

Regional Director

for

Give Directly

a local NGO whilst the 2

nd

Applicant owns and runs

Acacia Innovation Limited

a local waste management company which has a factory in

Bungoma County

. I am convinced that the Applicants have made their home in Kenya and I see no evidence of an intention to move the child out of this country.

(11) From their employment and businesses the Applicants earn about

Kshs. 1.0 million

per month which is more than sufficient to provide for the needs of the child. The Report of the Children’s Officer indicates that a visit was made to the home of the couple at

Delamere Flats

in the

Milimani

area of Nairobi. The home was found to be spacious with a room set aside for the child. They have hired a helper to assist in caring for the child. The Home Environment was found to be conducive for the child’s growth and development.

Finally the Applicants were vetted by the Kenya Police and were found to have no criminal antecedents. They have both annexed their Certificates of Good Conduct (Annexture

MEL “11”

) in this regard. All in all I am satisfied that the Applicants are very suitable adoptive parents for this child.

(12)

Section 4(2)

of the

Children Act

provides:-

“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]

(13) This is a child who was abandoned at birth or shortly thereafter. Efforts to trace the child’s biological parent(s) have borne no fruit. A Final Police Letter dated

14

th

October 2019

from Narok Police Station (Annexture

MEL ‘3’

to the Originating Summons) indicates that the Police have been unable to trace the parents of the child despite a six (6) months search. In the circumstances I do hereby do away with the need for any consent in line with

Section 159(1) (a)

of the

Children Act

.

(14)

Article 14

of the

Constitution of Kenya, 2010

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.”

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

(16) The child herein has been in the custody of the Applicants since

November 2019

. He has undoubtedly formed an attachment to the Applicants. I was able to observe the child on the online platform. He appeared healthy and happy and was comfortable being cuddled in the arms of the 2

nd

Applicant. I have no doubt that the child is in a loving and nurturing environment. The Reports from the guardian ad litem, and the

Children’s Department

have both recommended this adoption. I have no reason to disagree with said recommendations. This is a child who at best faced an uncertain future in a Children’s Home or other similar institution. This adoption offers the child the opportunity to be raised in a loving and stable home environment like other children, I find that this Adoption would certainly serve the best interests of the child.

(17) Accordingly I do allow this Summons and I make the following orders:-

(1) The Applicants MML and ESL are authorized to adopt the child Baby J who will henceforth be known as EJL.

(2) Need for consent is dispensed with in line with Section 159(1) as of the Children Act.

(3) The Registrar General is directed to make the relevant entries in the Adopted Children’s Register.

(4) That JMB and his wife DMMM are appointed as the Legal Guardians of the child.

(5) No orders on costs.

Dated in

Nairobi

this

22

ND

day of

January, 2021

.

…………………………………..

MAUREEN A. ODERO

JUDGE