Case ID:171663

In re J (Baby) [2021] eKLR

Case Metadata

Case Number:

Adoption Cause 176 of 2019

Parties:

In re J alias JM (Baby)

Date Delivered:

26 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

In re J (Baby) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application 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. 176 OF 2019

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 alias JM(MINOR)

AND

IN THE MATTER OF AN APPLICATION OF ADOPTION BY ZAA & NJ SAB

JUDGMENT

1. Before this Court is the Originating Summons dated

16

th

December 2019

by which

ZAA

(the 1

st

Applicant) and

NJB

seek the following orders:-

“1. SPENT

2. SPENT

3. THAT

the Applicant be authorized to adopt J alias JM infant.

4. THAT

upon Adoption, the child be known as JM.

5. THAT

the Registrar of Births and Deaths do cause an entry to be made in the Adoption Register with regard to this child and that the child be considered as a Kenyan citizen.

6. THAT

the costs of this application be costs in the cause.

2. The Summons was canvassed by way of viva voce evidence on the online platform. The Applicants are a married couple who are Kenyan citizens but who currently reside and work in

California, U.S.A

. The couple got married under Kisii Customary Rites in

1996

and later solemnized their union through a wedding conducted on

13

th

June 2012

at the Office of the

Registrar of Marriages

in

Nairobi

. The couple do not have any children together although the 1

st

Applicant has two adult daughters from a previous union. The 1

st

Applicant’s daughters who are independent both reside in the

U.S.A

. The couple commenced this Adoption process in the year

2014

seeking to adopt the subject child who is a boy-child then aged

eight (8) years.

3. As stated earlier the Applicants are both dual citizens holding both Kenyan and American citizenship. They have both exhibited copies of their National Identity Cards as well as copies of their American Passports. Each Applicant assured the Court that they comprehended the legal implications of an Adoption Order. They both stated that they were ready and willing to accord the subject child all rights due to a biological child including the right to inherit.

4. The child in question

JM

was also interviewed by the Court. He stated that he is

10 years

old and is in

Class Two

at the

[Particulars Withheld] School

. He confirmed that he knew the Applicants and had seen them when they came to Kenya. The child currently lives in Karen with the

elder sister

of the 2

nd

Applicant.

5. The Guardian-Ad-Litem

RBN

having been approved by the Court filed her report dated

2

nd

November 2020

in which she recommended the Adoption. Similarly the Adoption Agency

Child Welfare Society of Kenya

through their officer

FRANCIS NDELEKO

filed in Court their report dated

8

th

October 2019

recommending the Adoption. Finally the

Director Children’s Services

through the Principal Children’s Officer

EZEKIEL KIMANI

filed their report dated

28

th

October 2020

also recommending the adoption.

ANALYSIS AND DETERMINATION

6. I have considered the evidence adduced in open court as well as the various Affidavits and reports filed in this matter. 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.”

7. The subject child is believed to have been born on or about

1

st

December 2011

. He is now

ten (10) years old

well above the

six (6) week

age limit provided for in the Act. The

Child Welfare Society of Kenya

which is a Registered Adoption Agency have annexed to the Summons a copy of their Certificate Serial

No. [Particulars Withheld]

dated

8

th

October 2019

declaring the child free for Adoption. Accordingly I am satisfied that the prerequisites for Adoption as set out in

Section 156(1)

have all been met.

8. The Court is required to assess the suitability of the Applicants as adoptive parents. As stated earlier the Applicants are both Kenyan citizens who got married to each other under customary law in the year

1996

. They later solemnized their union through a Civil wedding conducted at the Registrar’s Office on

13

th

June 2012

. Annexed to the Summons is a copy of their Certificate of Marriage Serial

No. [Particulars Withheld]

(Annexture

ZAA’8’

). The couple’s marriage was not blessed with any issue hence the desire to adopt a child.

9. As earlier stated the Applicants both currently live and work in the

U.S.A

. The 1

st

Applicant is a trained Pharmacist who now works as a Pharmacist / Teacher at

[Particulars Withheld] School

in

California U.S.A

whilst the 2

nd

Applicant who is a trained Psychologist works at

[Particulars Withheld]

also in

California

. Between them the couple earns approximately

USD 10,000

(approx.

Kshs. 1,000,000/-

) per month which is more than sufficient to provide for the needs of the family. Annexed to the Summons is a copy of the 1

st

Applicants payslip (Annexture

ZAA’9’

) showing a net income of

USD 4,289.66

(approx.

Kshs. 400,000/-

)

.

10. The Applicants are both in good health. They are practicing Christians who worship at

[Particulars Withheld]

in

California

. Both Applicants have annexed copies of the Certificates of Good Conduct issued by the

Kenya Police Service

proving that neither has a Criminal record.

11. The couple told the Court that their extended family are aware of and have welcomed their decision to adopt a child. Indeed while they are in the

U.S.A

the child is living with the 2

nd

Applicants elder sister in

Karen

area of

Nairobi

although the Applicants provide for his upkeep, medical and educational costs.

12. Although they hold dual citizenship the Applicants maintain close ties with their family in Kenya and have invested in buying land and property in Kenya which they consider to be their home. The couple have a home in

Ongata Rongai, Kajiado County

. This home was visited and was found to consist of a three bed-roomed house built on three quarter acre of land. The house is fenced and gated.

13. Aside from this residence the Applicants also own a two bed-roomed Apartment near

Fatima Hospital

in

Rongai

. The Applicants also own other rental properties in

Nakuru County

and have a five–acre farm in

Kisii County

where they farm tea. Copies of the Title Deeds for the said properties are annexed to the Summons (annexture

ZAA’4’

). The 2

nd

Applicant’s brother is the designated caretaker of all the properties while the couple are working in the

U.S.A

.

14. It is quite evident by the extent of their investment in this country that the Applicants consider

Kenya

to be their home and have maintained close ties with the country and their family who are still in Kenya. The Applicants have appointed

RBM

a relative of the Applicants as Legal Guardian. The said

RBM

has signed a consent dated

15

th

December 2020

confirming her readiness to step in as legal guardian for the child in the event the Applicants are incapacitated or are otherwise incapable of caring for the said child. On the whole I find that the Applicants herein are suitable adoptive parents.

15. The subject child who is believed to have been born on or about

1

st

December 2011

and is now

ten (10) years

old

was found by a Good Samaritan on

5

th

December 2013

. At that time the child who was only

two (2) years old

was trying to cross the road by himself. The good Samaritan took him to her home and the next day, reported the matter at

Kamukunji Police Station

where the report was booked vide

OB No. 49 of 6

th

June 2013

. Thereafter the

Nairobi Children’s Court

committed the child to the

Child Welfare Society of Kenya

for care and protection.

16. To date

ten (10) years

after his abandonment no person has come forward to claim this child. The Adoption Agency made efforts to trace the parents / relatives of the child by having his photograph and details published

four (4) times

in the local Daily Newspapers on

22

nd

December 2013, 31

st

January 2014, 27

th

April 2014

and on

25

th

May 2014.

Copies of those newspaper adverts are annexed to the Summons. However the said Adverts did not elicit any response and nobody came forward to claim the child. Other efforts made by the Police to trace the parents/relatives of the child have not borne any fruit. The Final Police Letter dated

18

th

July 2007

written by the

OCS Kamukunji Police Station

reveals that the parents / relatives of the child had not been traced.

17. 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.”

18. The subject child was found abandoned in Kenya being only

two (2) years old

. This child was found on his own at only age two (2) trying to cross the road in the

Majengo

area. The child was unaccompanied and was rescued by a Good Samaritan. It is clear that the child had been abandoned in Kenya. Accordingly said child is presumed to be a citizen of Kenya by birth. Therefore in line with the provisions of

Article 14(4)

I hereby declare the said child to be a citizen of Kenya by birth.

19. The child herein faced an uncertain future being raised in children’s homes and / or other similar institutions. This Adoption will allow the child the opportunity to be raised in a loving and secure home environment like other children. The subject child was interviewed by the Court. He was an intelligent boy and was able to answer the questions put to him by the Court. The child is attending school for which the Applicants are paying. He is currently living with the 2

nd

applicants

elder sister

in

Karen

. This is proof that the child has already been embraced and accepted by the Applicants family members. The Children’s Officer visited the home in

Karen

where the child is currently living. It was reported to be a large five-bedroomed house standing on two (2) acres of land. The child slept in his own bedroom which was found to be neat and well-kept.

20. Section 76(3)(a)

of the

Children Act

provides as follows:-

“(3) Where the Court is considering whether or not to make an order with regard to a child, it shall have particular regard to the following matters-

a. The ascertainable feelings and wishes of the child concerned

with reference to the child’s age and understanding.” [own emphasis]

21. The child though young (only ten years old) told the Court that he was aware of the Applicants desire to adopt him. He stated that he knew the Applicants having met them during their previous visits to Kenya. He stated that he was happy and willing for the Applicants to be his parents.

22. In deciding upon any matter involving a child Courts are obliged to give priority to the best interests of the said child.

Section 4(2)

of the

Children Act

provides:-

“(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]

23. The child has been in the custody of the Applicants since

20

th

December 2017

under a Foster Care Arrangement. I find that this child has already bonded with the Applicants and their family. I have considered the reports filed by the

Guardian Ad Litem

, the

Adoption Society

and the

Director of Children’s Services

. All the reports recommend the Adoption without any reservations. Given the fact of abandonment of said child there is no person from whom consent for the adoption can be sought and obtained. In the circumstances I do away with the need for any consent in line with

Section 159(1)

of the

Children Act

.

24. Finally I have no doubt that this Adoption will serve the best interests of this child. Accordingly I allow the present application and make the following orders:-

1. The Applicants herein

ZAA

and

NJB

are authorized to adopt the child known as

“Baby J.”

2. The child shall henceforth upon adoption be known as

JM

.

3. The child is declared to be a citizen of Kenya by birth.

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

5. No orders on costs.

Dated in Nairobi this 26

th

day of February, 2021.

…………………………………..

MAUREEN A. ODERO

JUDGE