Introduction
1. Before the court is the Originating Summons dated 15th November 2023 by which the Applicant seeks the following orders: -
I. That the applicant be authorized to adopt BABY BRANDON DERRICK a child who is to be known as TIMOTHY NGUMBAU and the Registrar General be directed to enter this adoption into the Register of Adoptions.
II. That STEPHEN MUTHAMA and REBECCA MWONGELI MALONZA be appointed as Legal Guardians of the child
III. That the child be presumed to have been born in Kenya.
2. The application is supported by the Applicant’s statement of 15th November 2023 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 4th and 30th July 2024.
3. At the hearing, the Applicant testified in support of her application that her main motivation for this application for adoption is her desire to support a needy child and also to give her daughter a brother.
4. In her statement of 15th November 2023 in support of the application, the Applicant stated that she is a widow, her husband having passed on sometime in 1997, leaving her with one biological child, a daughter.
5. The Applicant confirmed to court that she understands the legal implications of an adoption order and therefore undertook 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’s 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.”
Eligibility of the Child
7. The child who is the subject of the present adoption proceedings subject is believed to have been born on 15th May 2022. The child was discovered abandoned by the mother on 8th August 2022 at Mbagathi District Hospital, Nairobi County. The child was rescued by a security officer at the hospital and thereafter a report in that regard was made to Kenyatta Police Post on 11th August 2022 under OB No. 05/11/08/2022.
8. Upon rescue, the child remained at Mbagathi District Hospital until Kibra sub-County Children’s Officer vide his letter of 30th November 2022 confirmed that the baby was abandoned and therefore needed to be placed at New Life Home Trust children’s home for care and protection. On 8th November 2022, the Children’s Court at Milimani under Protection and Care Case No. E595/2022, committed the child to New Life Children’s Home Trust for care and protection.
9. Buckner Kenya Adoption Services, a registered adoption agency, sat and deliberated on the applicants’ application for adoption and declared the child free for adoption on 5th May 2023. The Society signed and issued Certificate No. 0634 of even date, declaring the child free for adoption.
10. Vide foster care agreement of 12th May 2023, the child was placed in the custody of the applicant for mandatory bonding prior to adoption. The Applicant has since been in the continuous custody and care of the child.
11. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 6th April 2023 from Kenyatta Police Post.
12. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
13. As at the date of this application, the subject child was aged one year eight months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
14. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“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 of Kenya \"
15. The subject child was abandoned within Mbagathi District Hospital, Nairobi County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
Eligibility of the Applicant
16. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is suitable adoptive parent.
17. The applicant is female adult Kenyan citizen having been born 1974 as evidenced by a copy of her national identity card which was are annexed to the summons. The Applicant is currently widowed, the husband having passed on in 1997.
18. The Applicant has one biological child, a daughter, who as at the date of this application, is aged 29 years and is married and with one child.
19. In support of her application, the Applicant states that she is a person of reasonable means and is capable of providing for the minor. A home visit report by the Directorate of Children Services reveals that the Applicant is a tailor and a business lady possessed of sufficient resources to take care of the child.
20. At the hearing of the application, the Applicant testified at the hearing hereof that she has sufficient means to provide for the child. She annexed as (page 25-26), a copy of her bank statements, evidencing her income.
21. A pre-placement report dated 21st November 2020 by Buckner Kenya Adoption Society, the adoption agency in this matter indicated that the Applicant has sufficient net income and assets to cater for the minor.
22. On review of the evidence on record, I am satisfied that the applicant is generally financially secure and is capable of providing or the needs of the child. Concerning religion, the applicant deponed that she is a Christian and that she intends to raise the child in the Christian faith. In support of this averment, the Applicant annexed to the application (page 21) a letter of recommendation dated 27th November 2011 from her church, Africa Inland Church – Kenya.
23. The Applicant was examined by a doctor and was found to be mentally and physically fit (Annex 14-15) to undertake the adoption. The Applicant equally annexed a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex 27) evidencing that she is of no criminal record.
24. The applicant informed court that her family and friends are aware of these adoption proceedings and supports the same. In that regard, the Applicant attached a letter of recommendation from family members (annex 19) and a letter of consent (Annex 22) from her biological daughter.
25. The applicant has appointed STEPHEN MUTHAMA and REBECCA MWONGELI MALONZA who are the Applicant’s brother and sister-in-law respectively, to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardian has signed a consent dated 26th November 2020 (28) indicating their willingness to act as legal guardians for the child.
26. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
27. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are 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) …………”
28. This is a child who was abandoned after birth. He faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
29. The child has lived with the applicant since 12th May 2023. He has bonded well with the applicant whom he views as his parent. I was able to see the child online virtually at the hearing of the application. He was a healthy and happy baby boy and was very much at ease in the company of the applicant.
30. A home visit was conducted by Guardian ad litem and the Directorate of Children Services reveals that the applicant lives in an own spacious two bedroomed house in Kilome, Makueni County and that the home offers a comfortable place to raise the child, is accessible and close to amenities like schools and hospitals which are necessary facilities for the child.
31. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
Determination
32. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, allow the application and hereby make the following orders: -
i. That the Applicant herein ANGELICA NTHENYA MWOLOLO be and is hereby authorized to adopt BABY BRANDON DERRICK, an infant.
ii. That henceforth, the child shall be and is hereby known as TIMOTHY NGUMBAU.
iii. That the child be and is hereby presumed a Kenyan Citizen by birth and is entitled to all rights and privileges arising therefrom.
iv. That the consent of biological parents of the minor be and is hereby dispensed with since the child was abandoned shortly after birth.
v. That the Registrar General be and is hereby directed to enter this adoption into the Adopted Children Register.
vi. That STEPHEN MUTHAMA and REBECCA MWONGELI MALONZA be and are hereby appointed legal guardian of the child.
vii. The Guardian ad litem be and is hereby discharged.
33. It is so ordered.
Moses Court Assistant
………N/A…………. for the Applicant