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JudgmentA.B.Y AND A.B.Y VS undefined5 min read

A.B.Y AND A.B.Y VS undefined

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


  1. Before this Court is the Further Amended Originating Summons, Supporting Affidavit, Statement in Support of Application all dated 8th February, 2024 respectively by which the Applicant seeks inter alia that; -
  2. The Afsana Banu Yusuf (the Applicant) be authorized to adopt baby Sudeis Sahil (minor herein).
  3. The child be known as Sudeis Afsana Banu Yusuf.
  4. The Registrar General be directed to enter this adoption into the register of Adoptions
  5. That Menrunnissah Yusuf Khalifa be appointed as Legal Guardian of Baby Sudeis Afsana Banu Yusuf
  6. The minor be considered as a Kenyan Citizen.
  7. The matter was canvassed by way of vive voce evidence on the virtual platform on 7th March, 2024.
  8. The Applicant is a Kenyan by birth but currently resides in United Kingdom where she lives and work for gain. She has since acquired UK citizenship after she moved and lived there as an asylum seeker. The Applicant is divorced and currently not in any relationship. She does not have any children of her own.
  9. The (Applicant herein) is a sister to the late Zahia Yusuf Suleiman who is the biological mother to minor, hence kinship adoption provided under Section 193 of the Children Act 2022. The whereabouts of the biological  father of the minor is not known.
  10. The Applicant wishes to adopt her nephew with the intention of providing for him an opportunity, a strong sense of identity, security, stability and belonging. The Applicant stated that she has been taking care of the minor since the demise of this mother by meeting all the minor’s needs and accepted the minor as her own son. The minor is 17 years old.  It’s Applicant’s averment that she understands the legal implications of the Adoption order.
  11. The child (male) who is the subject of the present adoption proceedings was born on 20th May, 2006. The minor was born to late Zahida Yusuf Suleiman and Naushad Mohamed Sadik. The minor’s parents separated when he was young and his father whereabouts remains unknown.  The minor was left under the care of his sister who has continued to cater for the minor’s needs through support of their maternal Aunty (The Applicant herein). The family consented that the minor be adopted by his Applicant. It is at that point that the Applicant took the minor and has been taking care of the minor.
  12. Upon an assessment and approval by Kenya Children’s Home Adoption Society, consent from the biological siblings of the minor, the consent from the minor, the minor was declared free for adoption by the Kenya Children’s Home Adoption Adoption Society Vide a Certificate of Freeing Serial Number 954 dated 17th January, 2024. 
  13. On 16th February, 2023 this Court issued an order appointing Summaiya Sadik as the child’s guardian ad litem, and further directing the guardian ad litem and the Director of Children’s Services to investigate and file their respective reports within 45 days.
  14. Pursuant to Section 102 of the Children Act, before this matter came up for hearing, Assistant Director of Children’s Services prepared and filed in Court a favorable report dated 19th February 2024  in respect of the proposed adoption of the minor by Applicant. She further stated that this being a Kinship Adoption it will be in the best interest of the minor.  Another report in respect of the proposed adoption of the minor was prepared by Kenya Children’s Home Adoption Society, and this report was similarly in favour of the proposed adoption.
  15. Subsequently a Statutory Report was also filed by the guardian ad litem, Summaiya Sadik in which he noted that the Applicant is very close and communicate so well with the minor also capable of raising the minor hence recommended the adoption of the minor.
  16. The reports indicate that the Applicant is financially and emotionally capable of providing the child with care, protection and education. She has no criminal record as evidenced by copy of Exhibit 9. This Court has evaluated the facts of this adoption. This is a Kinship adoption. It is evident that the Applicant has fulfilled all the legal requirements relative to the adoption of the child.
  17. The consent of the biological father of the child was dispensed with since his whereabouts remain unknown. The home visits by the guardian ad litem, the adoption society and the Assistant 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.
  18. This Court observed the Applicant with the minor in Court and it was evident that in the period that the Applicant has had the custody of the child, the child has bonded well with her. The child was present in Court and  stated that he understood the adoption proceedings and that it meant the Applicant will acquire full parental responsibilities over his where he consented to the Adoption Proceedings.
  19. After carefully assessing the records herein, I am satisfied that the Applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides. The court may make an adoption order on application by-

(1) (a)  Sole applicant; or

(b)  Two spouses jointly.

(2)  The court shall not make an adoption order in any case unless-

      1. the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and
      2. The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.

(3)  The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

  1. 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

  1. 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 Applicant.
  2. Accordingly, I allow the prayers sought in the Further Amended Originating Summons dated 8th February, 2024 and order as follows:
  3. The Applicant, AFSANA BANU YUSUF be hereby allowed to adopt BABY SUDEIS SAHIL.
  4. Henceforth, the child shall be known as SUDEIS AFSANA BANU YUSUF.
  5. His date of birth shall be 20th May, 2006.
  6. He is presumed to be a citizen of Kenya by birth.
  7. MENRUNNISSAH YUSUF KHALIFA shall be the Legal Guardian of the child should such eventuality arise.
  8. This Court directs the Registrar General to duly enter this order in the Adoption Register.
  9. The Registrar General to duly enter this order in the Adoption Children Register.
  10. The Director Immigration be authorised to issue the child with a Kenyan Passport.
  11. The Guardian Ad litem is discharged.

It is so ordered.  

DELIVERED DATED & SIGNED IN OPEN COURT ON 27TH OCTOBER, 2023.


In presence of: -

Sylvia Court Assistant

    A.B.Y AND A.B.Y VS undefined A.B.Y AND A.B.Y VS undefined