Introduction
1. Before the court is the Originating Summons dated 16th May 2024 by which the Applicant seeks the following orders: -
I. That the applicant ALICE MORAA PETER NYAKERIGA be allowed to adopt the child currently identified as BABY ZIPPORAH BOSIBORI.
II. That henceforth the child be renamed as ZIPPORAH BOSIBORI NYAKERIGA.
III. The child be presumed to be a Kenyan citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof, including issuance of post adoption Certificate of Birth and a Passport by the Republic of Kenya.
IV. That RONALD GEKONDE NYAKERIGA be appointed the legal guardian of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
V. That the guardian ad litem be discharged.
VI. That the Registrar General be directed to make appropriate entries in the Adopted Children’s Register.
VII. That this Court do issue such further orders as are in the interest of justice.
2. The application is supported by the Applicant’s statement of 16th May 2024 as well as the Supporting Affidavit of even date sworn by the applicant. The Application was canvassed by way of viva voce evidence on the virtual platform on 11th July 2024.
3. This is a kinship adoption proceeding in line with section 193 of the Children Act, 2022. The subject child is a niece to the Applicant, the minor’s mother, one PNN being biological sister to the Applicant herein. Kinship adoption is defined under section 2 of the Children’s Act as follows; -
“Kinship adoption” means the adoption of a child by a person who is relative of the child;
4. The Applicant testified at the hearing of this application that her main motivation for this application is the desire to give the minor love and provide her with emotional and social support. In her statement of 29th April 2024, the Applicant also stated that she loves children and always had a long-standing desire to have children of her own. However, she has been unable to have a biological child of her own due to medical reasons.
5. The Applicant confirmed to court that she understands the legal implications of an adoption order. The applicant undertakes to accord to the subject child all rights due to a biological child, including the child’s right to inheritance.
ANALYSIS AND DETERMINATION
6. Section 184(1) (a) and (b) of the Children Act 2022 sets the prerequisites which must be met before an adoption order can be made. The section provides as follows: -
“(1)A person shall not commence any arrangements for the adoption of a child unless—
(a) the council, in accordance with the rules, has declared the child free for adoption; and
(b) the child has attained the age of six weeks.”
7. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022 which provides as follows; -
“183. (1) Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as “adoption order”, authorising an applicant to adopt a child.
(2) ……….
(3) In this Act, adoption means local, kinship and foreign adoption.
(4) For the purposes of this Part—
(a) “kinship adoption” has the meaning assigned to it in section 2;
(b)…………..
8. In relation to kinship adoption, the court in re R.N.W. (minor) (2019) eKLR stated as follows; -
“11. This is a Kinship Adoption as the applicant is related to the child since the child’s biological mother was a cousin to the Applicant.
12.Lady Justice Achode In re J.N.A. [2018] eKLR held that: -
“The indefinite moratorium issued by the Kenyan cabinet on 27th November, 2014 involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenya applicants, even those living abroad. Dual citizenship in our country is anchored in Article 16 of the Kenyan Constitution.
According to the Guidelines for Alternative Family Care of Children in Kenya page 153,“kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child.\"Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoptions. This is therefore considered to be a local adoption.’”
Eligibility of the Child
9. I will first examine whether the child is eligible and free for adoption. Subsequently, I will thereafter examine the suitability of the Applicants before making my final orders.
10. The child who is the subject of the present adoption proceedings is currently nine (9) years having been born on 13th February 2015. Consequently, as at the date of this application, the subject child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children Act 2022.
11. The child’s biological mother, Ms. PERIS NYAMOITA NYAKERIGA who is still alive and currently lives with the minor gave her consent vide a Consent Letter dated 21st September 2022 wherein she indicated that due to her current medical condition, she has been unable to fully support the minor. According to her the proposed adoption would serve he best interest of the minor.
12. The minor’s biological brother, one BRIAN RETEMO NYAKERIGA vide his affidavit of 15th December 2023 and annexed (at page 62 and 63) to the application also gave his consent for the adoption. It was his position that the proposed adoption would help the minor acquire better life and is therefore in the best interest of the child.
13. At the hearing of this application, I established that the minor is currently below the age of ten (10) years and therefore her biological mother’s consent and that of his elder brother are sufficient pursuant to section 186(8)(c) of the Act.
14. The Kenya Children’s Homes Adoption Society (KCH), a registered adoption Society in Kenya, sat and deliberated on the applicants’ application and declared the child free for adoption on 17th January 2024. The Society signed and issued Certificate No. 952 of even date declaring the child free for adoption.
Eligibility of the Applicant
15. Having established that the subject child is free for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is a suitable adoptive parent.
16. The applicant is Kenyan citizens and is currently aged 55 years as evidenced by a copy of her national identity card which are annexed to the summons at page 27 thereof. The Applicant who lives in Tennessee, Unites States of America, USA is currently single and is yet to have a biological child of her own due to medical reasons.
17. The applicant is gainfully employed as an Epidemiologist in Tennessee, USA. According to evidence on record, the Applicant owns a home in which she lives. The Applicant also attached to the summons copies of her pay slips for October and November 2023, her bank statements as well as title deeds of properties in Kenya, evidencing her financial means and capability to provide for the minor.
18. On review of the evidence on record, I am satisfied that the Applicant is financially secure and is therefore capable of providing or the needs of the child.
19. The Applicant was examined by a doctor and was found to be both physically and emotionally fit and therefore meets the requirement of section 186 (6) (b) of the Children’s Act to undertake the proposed adoption.
20. Equally, the Applicant is of clean criminal record and has neither been charged nor convicted of any offence in the past as evidenced by a copy of her Criminal History Record (page 48 of the application) dated 10th June 2023 and issued by Tennessee Bureau of Investigations. The Applicant therefore meets the requirement of section 186 (6) (a), (b), and (c) of the Children’s Act, 2022.
21. The applicant informed the court that her friend and families, both nuclear and extended, are aware of these adoption proceedings and supports the same. As evidence to this averment, the Applicant annexed to her application (at page 49-51) copies of recommendation forms duly filed by two of her recommenders.
22. Concerning religion, the applicant is a Seventh Day Adventist (SDA) and intends to raise the child in the Christian faith. She annexed to the summons among others, a letter of recommendation dated 7th June 2023 from Pastor McKenzie (Page 28 of the Supporting documents)
23. The Applicant has appointed her younger brother, one RONALD GEKONDE NYAKERIGA to be the legal guardian of the minor. Evidencing his acceptance and willingness to act as a legal guardian to the child, the proposed legal guardian signed a consent dated 27th October 2022 and has also sworn affidavit dated 30th April 2024 in that regard. He confirmed to court that as a legal guardian to the child, he understands his obligations to the child.
24. In the premises, I am satisfied that the applicant is a suitable adoptive parent for the minor.
25. Section 8(1) of the Children Act, 2022 directs that in deciding upon any matter involving a child, this court is obliged to give priority to the best interests of the said child. The Section provides: -
“(8). (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) …………”
26. On 11th July 2024, I had the opportunity to interview the child virtually in court during the hearing of these proceedings. I found her very enthusiastic to be part of her aunt’s family, be considered a child of the Applicant hopefully join the Applicant in the USA for more expanded opportunities for her growth and development.
27. From the affidavit sworn by the applicant on 16th May 2024 and the accompanying statement, it is clear that the applicant’s intentions are to protect, support, provide inheritance for and maintain the child as her own. She understands the obligations of an adoptive parent towards the child, including the right to inheritance.
28. I have perused the reports prepared by the adoption agency, the guardian ad litem and the director of children services. All were positive and all recommend the adoption.
Determination
29. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, I allow the application and hereby make the following orders: -
i. That the applicant herein ALICE MORAA PETER NYAKERIGA be and is hereby allowed to adopt the child currently identified as BABY ZIPPORAH BOSIBORI.
ii. That henceforth the child be and is hereby known as ZIPPORAH BOSIBORI NYAKERIGA.
iii. That RONALD GEKONDE NYAKERIGA be and is hereby appointed the legal guardian of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
iv. The child be and is hereby presumed to be a Kenyan citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof, including issuance of post adoption Certificate of Birth and a Passport by the Republic of Kenya.
v. That the Registrar General be and is hereby directed to make appropriate entries in the Adopted Children’s Register.
vi. That the guardian ad litem be and is hereby discharged.
30. It is so ordered.
Moses Court Assistant
Ms. Kimenyi…………….. for the Applicant