1. This is a Kinship adoption as the applicants are the maternal uncle and Maternal aunt to PRECIOUS BOSIBORI, the subject minor whom they seek to adopt vide the Originating Summons dated 4th April 2023. They are therefore relatives within the extended family of the child.
2. The Applicants are husband and wife having solemnised their union on the 4th August as evidenced by marriage certificate serial No. 525555. The 1st Applicant is an Agronomist and currently living in Victoria, Australia. The 2nd Applicant is a business lady and residing at the family home in Kitengela within Kajiado County.
3. Both the Applicants testified in Court. PW2 Alfaxard Gekara Kurendi is the 1st Applicant. He has lived with the minor since she was 4 years old. She is the daughter of his sister. He has provided for all her material needs. The Adoption order will enable him provide for her benefits that accrue to his children, He has 2 other children, aged 6 and 2 years respectively. He understands the implications of an adoption order. He has the financial means to provide for the needs of the Child.
4. PW3 Faith Kemunto Charles is the wife of the 1st Applicant and therefore an Aunt to the Minor. She understands the implications of the adoption order and accepts the minor as her child. She has lived with the minor for 4 years.
5. PW1 Winfred Ikinya, Officer from the Department of Children Services. She confirms that the office prepared a report after conducting home visits. The report is dated 28th April 2023. It states that the Applicants were confirmed to suitable parents and the minor consented to the Application. The Department recommends the Adoption.
6. PW4, the minor Precious Bosibori, she is 16 years old. Currently in Form 2 at St. George’s Secondary School. She understands the effect of the Adoption order. She is happy to be adopted by the Applicants. It was her testimony that the Applicants are the only family they have known. She also filed a consent in court dated 15th January 2023 giving her consent to the Adoption.
7. PW5, Phyllis Nyakinyi Kamau is the Guardian Ad Litem, she prepared a report dated 24th April 2023. She visited and interviewed the Applicants, the minor and the family of the minor. The Biological mother expressed her support for the adoption. The Guardian Ad Litem is of the opinion that the applicants will provide a safe, loving and nurturing home for the minor and therefore recommends the Adoption.
8. PW6, Callen Kurendi Bitutu, the proposed Legal Guardian is the elder sister to the Applicant. She is supportive of the Application. She understands the implications of being a legal guardian and accepts the role wholeheartedly.
9. PW7, Naomi Kurendi, is the biological mother of the minor. She confirms that the Applicants are her brother and sister in law respectively. She consents to the minor being adopted as she believes that the Applicants will provide for her stability. She has one other child, the minor is the older child. She understands the consequences of the Adoption order and she willingly surrenders her parental rights to the Applicants. She signed consent to Adoption on 2nd March 2023 at KKPI Adoption Society.
10. The KKPI Adoption Society conducted an Assessment and found the Applicants to be suitable parents to adopt and declared the Child free for Adoption vide certificate serial no. 356.
11. The Acting Chief Masige Location, Bassi Masige Location, Nyamache by letter dated 16th January 2023 confirmed that Naomi is the mother of the Minor and the Applicant has been acting as the guardian of the child. and
12. This is a kinship adoption under Section 193 of the Children Act, 2022 and Annex C at Page 153 of the guidelines for Alternative family care of Children in Kenya, 2014 which defines Kinship adoption as adoption of a child by a person who is a relative of the child.
13. After carefully assessing the records herein, I am satisfied that the applicants have fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides;
(1) The Court may make an adoption order on application by—
(a) a sole applicant; or
(b) two spouses jointly.
(2) The Court shall not make an adoption order in any case unless—
(a) the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and
(b) 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.
14. The Applicants are aged 43 and 28 years respectively. In accordance with Section 186 (3) she is the maternal Uncle and Auntie of the minor. The minor was present in court and consented to the Adoption. The maternal Auntie of the minor was in court and has consented to the adoption.
15. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:
A Child’s Best interests are of paramount importance in every matter concerning the child
16. This principle is restated in Under Section 8 of the Children Act, 2022 which provides
Best interests of the child.
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
Section 194 (1) (c) of the Act also requires that if the adoption order is made
the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;
17. In view of the foregoing the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated 4th April 2023 and order as follows:
i. The Applicants ALFAXARD GEKARA KURENDI and FAITH KEMUNTO CHARLES are allowed to adopt PRECIOUS BOSIBORI (the Child) the child to be known as PRECIOUS BOSIBORI ALFAXARD
ii. The minor’s date of Birth 25TH October 2006
iii. CALLEN BITUTU KURENDI is hereby appointed as legal guardian of the Child, PRECIOUS BOSIBORI ALFAXARD.
iv. The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children
v. The Guardian Ad Litem is hereby discharged.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…26th ……DAY OF …May………..2023.