Case ID:171716

In re EM (Child) [2021] eKLR

Case Metadata

Case Number:

Adoption Cause 175 of 2019

Parties:

In re EM alias Unknown (Child)

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 EM (Child) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Adoption granted

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. 175 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 EM alias UNKNOWN ABANDONED FEMALE BABY (THE CHILD)

AND

IN THE MATTER OF AN APPLICATION OF ADOPTION BY NMM & RBK

JUDGMENT

(1) Before this Court is the Originating Summons dated

16

th

December 2019

seeking the following orders:-

(i)

THAT

the consent of the biological parents of BABY EJ ALIAS BABY EM ALIAS UNKNOWN ABANDONED FEMALE BABY (THE CHILD) be dispensed with since the child was abandoned shortly after birth.

(ii)

THAT

the Applicants be authorized to adopt BABY EJ ALIAS BABY EM ALIAS UNKNOWN ABANDONED FEMALE BABY (THE CHILD) to be known as ZB.

(iii)

THAT

PMW and RMM both of P.O. Box [….]-00200 Nairobi in the Republic of Kenya be appointed as Legal Guardians of BABY EJ ALIAS BABY EM ALIAS UNKNOWN ABANDONED FEMALE BABY (THE CHILD) upon granting the adoption Order.

(iv)

THAT

the Registrar General be ordered to make the appropriate entries in the Adopted Children’s Register in respect of BABY E ALIAS BABY EM ALIAS UNKNOWN ABANDONED FEMALE BABY (THE CHILD).

(v)

THAT

ZB be considered a Kenyan Citizen.

(vi)

THAT

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

(2) The Summons was canvassed by way of viva voce evidence on the online platform. The Applicant

NMM

and

RBK

are a couple who have been in a marital union since

June 2014

. The couple have no biological children of their own hence the desire to adopt.

(3) The couple informed the Court that they have lived with the subject child in their home since

2019

. They state that their extended family are aware of and support their intention to adopt a child. Each Applicant confirms that they understand and accept the legal obligations of an adoption order. That they will accord to the subject child all rights due to a biological child including the right to inherit.

(4)

PW3 MAM

who was appointed as

Guardian ad Litem

in this matter filed in Court her Report recommending the adoption.

(5)

PW4 MS GRACE EKAMBI

and Officer from the

Little Angels Network

confirms that the Adoption Agency also filed its report recommending the adoption.

(6)

PW5 MR. EZEKIEL KIMANI

a Principal Children Officer filed in Court the Report dated

7

th

July 2020

prepared by the

Director of Children’s Services

which also recommend the adoption.

ANALYSIS AND DETERMINATION

(7) 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.”

(8) The subject child was abandoned on

5

th

August 2018

shortly after birth at the

Machakos Level 5 Hospital

. The child is therefore now about

2

1

/

2

years old

which is above the

six (6) week

age limit provided by the law. Annexed to the Originating Summons is a copy of a Certificate Serial

No. [….]

dated

8

th

May 2019

declaring the child Free for Adoption. I am satisfied that all the legal prerequisites for an Adoption order have been met.

(9) The duty of this Court is to determine whether the Applicants are suitable adoptive parents. As stated earlier the Applicants are a married couple who are both Kenyan citizens as evidenced by the copies of their National Identity Cards which have been annexed to the Summons (Annexture

NMM’8’

). The Applicants got married on

4

th

June 2014

at the

[Particulars Withheld]

Chapel

as proved by the annexed copy of their Marriage Certificate Serial

No. [….]

(Annexture

NMM’9’

). Despite having been married for the past

eight (8) years

the couple have not been blessed with a child. Hence their desire to adopt a child in order to complete their family.

(10) The Applicants are both in stable employment. The 1

st

Applicant works with

[Particulars Withheld]

as a Medical Researcher on Permanent and Pensionable terms. This is confirmed by the letter dated

28

th

November 2019

written by the Director – General of

[Particulars Withheld]

(Annexture

NMM’10’

). The 2

nd

Applicant works for

[Particulars Withheld]

as a Team Leader. This too is confirmed by the letter dated

27

th

November 2019

written by the Acting HR Manager of

[Particulars Withheld]

. Each Applicant has annexed a copy of their payslip. Together the Applicants have a joint income of approximately

Kshs. 400,000/-

per month. The Applicants have also annexed copies of their Bank Statements.

(11) Aside from their earnings from employment the Applicants also earn rental income from an Apartment in

Athi River

. From the above it is clear that the Applicants are financially secure. Their joint earnings are more than sufficient to provide for the needs of a growing child.

(12) The Applicants reside in a three bed-roomed Apartment at the

[Particulars Withheld]

Estate

along

Mbagathi Way

. The Children’s Officer who visited the home reported that the house was spacious and well-furnished. The child has her own bedroom which is well ventilated with enough toys for the child to play with. The Applicants have hired a Nanny to assist in caring for the child. The estate is secure and has several social amenities like shops, markets, schools and hospitals close by. The Applicants home environment is conducive to raising young child. The Applicants are both in good health both physically and mentally based on their medical reports which have been annexed to the Summons (Annexture

NMM ‘13’

). They both profess the Christian faith and regularly attend mass at

[Particulars Withheld]

Catholic Church.

(13) The Applicants have already introduced the subject child to their respective families and the child has been embraced wholeheartedly as a grandchild. The Applicants have each annexed a copy of their Clearance Certificates issued by the

Kenya Police Service

indicating that neither has a Criminal record (Annexture

NMM’18’

).

(14) Finally the Applicants have appointed as Legal Guardians for the child their family friends

PMW

and

RMM

who are a married couple who have also adopted children. The two Legal Guardians have both signed a letter of consent (Annexture

NMM’11’

) to take up the care of the child in the event the Applicants are unavailable or unable to care for the child. All in all I am satisfied that the Applicants are genuine in their desire to adopt and are suitable as adoptive parents.

(15) The subject-child is a girl child who was born on

5

th

August 2018

at the

Machakos Level 5 Hospital

. The woman who bore the child and who gave her name as

EM

abandoned the child in the New Born Unit shortly after delivering the child. The matter was reported at

Machakos Police Station

vide

OB Number [….] of October 2018

. The

Machakos Children’s Cou

rt committed the child to

Mahali Pa Maisha Children’s Home

as a child in need of care and protection.

(16) Following the abandonment of the child the Police made efforts to trace the biological mother / relatives. The mother was not traced on the telephone contact she had given the hospital. That number being

0710xxxxxx

turned out to be a telephone contact of a woman who had no relationship with the child or with

‘EM’

the child’s mother. Efforts were also made to trace the mother through the Assistant Chief of

Nduu Sub-Location Mutituni Location

based on the details given to the Hospital by the child’s mother. Annexture

NMM’4’

is a letter dated

15

th

May 2019

written by the Assistant Chief stating that the lady

EM

was

not

a resident of

Nduu Sub-Location

and was not known in the area. It is apparent that the lady who delivered the subject child gave a false name, phone number and details to the hospital staff – clearly this was done in pursuance of her intention to abandon the child at the hospital.

(17) The efforts to trace the child’s mother have to date borne no fruit. No person has come forward to claim the subject child since the day she was abandoned in the hospital. The Final Police letter dated

12

th

February 2019

from Machakos Police Station confirms that the mother / relatives of the child could not be traced.

(18)

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.”

(19) The subject-child was abandoned shortly after birth in

Machakos County

in the Republic of Kenya. This child was actually born in a hospital in Kenya. Therefore in line with

Article 4(1)

I hereby declare her to be a Kenyan citizen by birth. Similarly given that there exists no person from whom consent for this adoption can be sought and/or obtained I waive the requirement for consent in line with

Section 159(1)

of the

Children Act

.

(20) 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]

(21) The subject child herein has been in the care and custody of the Applicants for the past

1

1

/

2

years

by virtue of a Foster Care Agreement dated

30

th

June 2019

. No doubt she has bonded with the Applicants. I was able to see and talk to the child on the online platform. She was a cheerful boisterous child. She was able to identify herself by her name

‘Z’

and she referred to the 2

nd

Applicant as her ‘

M

.’ I am certain the child is well loved and cared for.

(22) Given her abandonment at birth this child faced an uncertain future in Children’s Homes or institutions. This adoption allows the child the opportunity to be raised in a stable and loving home environment. This is certainly in the best interests of the child. I have perused the Reports filed by the

Guardian ad Litem

, the

Adoption Agency

as well as the

Director of Children’s Services

. All are positive and recommend the adoption without any reservations. I am in agreement and accordingly, I allow this application and make orders as follows:-

(i) The Applicants

NMM

and

RBK

are authorized to adopt

BABY EJ

alias

BABY EM

.

(ii) Upon adoption the child to be known as

ZB

.

(iii)

PMW

and

RMM

are hereby appointed as Legal Guardians for the child.

(iv) The child is declared to be a Kenyan citizen by birth.

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

(vi) No orders on costs.

Dated in

Nairobi

this

26

th

day of

February, 2021

.

…………………………………..

MAUREEN A. ODERO

JUDGE