1. The Applicants, Alice Atieno Opiyo (“the 1st Applicant”) Outreach Coordinator at North Star Alliance, France and Roger Francois A. Bracke (“the 2nd Applicant”), a Psychologist, seek by their Originating Summons and Statement in support of their Application dated 7th April, 2023 , seek orders inter alia to be allowed by this Court to adopt Baby Esence Eliud Owaga (hereafter “the child”), the minor to be known as Essence Eliud Owaga Bracke.
2. The Applicants are husband and wife. The 1st Applicant is a widow and the 2nd Applicant is divorced. The Applicants met in Kenya and got married in August, 2016 where they later formalized their union at Registrar’s Office in Nairobi. The 1st Applicant was married to Allan Awanga Otieno (deceased) and she has been blessed with one child (the subject herein) a son, Essence Eliud Owaga (17 years).
3. The 2nd Applicant has four children from his previous marriage and they have all consented to the marriage. Both Applicants live together in France.
4. The child (male) who is the subject of the present adoption proceedings was born on 22nd April, 2006 at Nakuru District Hospital in Nakuru to Alice Atieno Opiyo and Allan Owaga Otieno. The child’s mother got married to Roger Bracke after the death of the minor’s biological father.
5. The 2nd Applicant has bonded well with the child as the Applicant has lived with the minor since he married minor’s mother. Subsequently, the 2nd Applicant has been responsible over the child by providing him with basic needs and taking up the role of a father hence adoption.
6. Accordingly, the KKPI Adoption Society went through the documents submitted by the relevant parties and declared the child free for adoption on 15th March, 2023 vide Certificate Serial No. 332. The child has since then been in the continuous custody and care of the Applicants for close to seven years.
7. According to correspondences and relevant statutory authorities the child herein gave full consent through a letter dated as well as his consent in Court.
8. Pursuant to Section 102 of the Children Act, before this matter came up for hearing, KKPI Adoption Society prepared and filed in Court a favourable report in respect of the proposed adoption of the child by both Applicants. Another report in respect of the proposed adoption of the child by the Applicants was prepared by the Director of Children’s Services, and this report was similarly in favour of the proposed adoption.
9. Section 122 of the Children Act 2022 provides guardian ad litem, and according to Jackline Ikirwage Emurugat statutory report dated 20th July, 2023 stated that the Applicants have lived together for over 7 years with the child and described their marriage as stable and loving thus assurance that the child will grow in a peaceful complete family.
10. The Applicants warm relationship towards the child is characterised by deep affection and enjoyment of the child’s company where the child has well been integrated into the family hence the best interests of the child.
11. The evidence adduced in Court by the Elmada Calvin Otieno and Hellen Akoth Malago who are related to the Applicants, stated that they understand what the role entails and consented to be Legal Guardianships
12. The Applicants are of good health and financially capable of taking care of the child. They have no criminal record as evidenced by Police Clearance certificate of serial numbers PCC-ERTELDD5. The Director of the Children’s Services established that the Applicants have the financial and emotional capability to provide for the upkeep and education of the child.
13. The Director also noted that the Applicants have proposed Elmada Calvin Otieno and Hellen Akoth Malago to be the Legal Guardian for the child. The Adoption Society recommends this adoption.
14. This Court also observed the child in Court where he stated that he was in Court for Adoption Proceedings and has consented to the adoption.
15. All the statutory reports that have been filed in respect of the proposed adoption of the child by the Applicants have recommended that this Court allows the joint Applicants to adopt the child. This Court has evaluated the facts of this adoption. This is a local adoption as under Section 193 of Children Act. It is evident that the Applicants have fulfilled all the legal requirements relative to the adoption of the child.
16. This Court is alive to the jurisdiction of the High Court vide Article 165 Constitution of Kenya 2010 and Section 183(1) Children Act 2022. The Court is conscious of the law; Article 53 Constitution of Kenya 2010, Section 8 of Children Act 2022 and the UN Convention on the Rights of the Child & African Charter on the Rights & Welfare of the Child all amplify on the best interests of the child.
Determination
17. On the basis of a careful examination of the documents presented before me as well as the observations made therein, this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicants. Hence, this Court allows the Applicants’ application that: -
1. The Applicants, Alice Atieno Opiyo and Roger Francois A. Bracke, are hereby allowed to adopt Baby Essence Eliud Owaga.
2. Henceforth, the child shall be known as Essence Eliud Owaga Bracke.
3. His date of birth shall be 24th April, 2006. His place of birth shall be Nakuru County.
4. He is presumed to be a citizen of Kenya by birth. ELMADA CALVIN OTIENO and HELLEN AKOTH MALAGO shall be the legal guardians of the child should such eventuality arise.
5. This Court directs the Registrar General to duly enter this order in the Adoption Register.
6. I hereby discharge the guardian ad litem.
It is so ordered.
In presence of: -
Ms Gicheha Advocate, for the Applicants