1. The application dated March 17, 2024, is currently before this court. The applicants, AOMM and RWM, are seeking authorization to adopt a child referred to as baby BFM. Once the adoption is finalized, the child will be known as AMM. Additionally, FM and GG will be appointed as the child's legal guardians upon the approval of the adoption orders.
2. The Applicants are a married couple, as evidenced by Marriage certificate No 197873, and Kenyan citizens, as evidenced by their Kenyan National Identity Cards. The Applicants have one biological child aged 9 years. The Applicants are both employed; their financial capability and ability to provide for the child are evidenced by their payslips. Their health status is good according to their medical reports, and they have no previous criminal records, as shown by the Certificates of Good Conduct issued by the Directorate of Criminal Investigations. They have expressed their desire to legalize their relationship with the child through adoption, allowing the child to become a full member of the family. The Applicants also have a strong desire to expand their family and provide opportunities to those who are less fortunate.
3. The report from the Ministry of Labour and Social Protection State Department of Social Protection - Directorate of Children’s Services (Nairobi County) dated 24th September, 2024 indicates that the child is male and 2 years 1 month old, having been born approximately on 11th September, 2022. The child was found abandoned at Mlolongo Market on 11th September, 2022, by good Samaritans and was later placed in New Life Home Trust in Kilimani. The baby was placed with the Applicants for a mandatory bonding period before adoption, and he has been in their continuous care and control. The child was declared free for adoption on 11th October, 2024 by Little Angels Network vide freeing Certificate Serial Number 002405.
4. FM and GM, the proposed legal guardians, are a married couple who are blessed with two children and are both employed. The Applicants chose these guardians because they understand their family dynamic well, and the guardians provided their consent on 20th February, 2022.
5. There is a consistent message from AOMM and RWM regarding the adoption of the child. They wish to legalize their relationship with the child through adoption, aiming to fully integrate the child into the family, strengthen family bonds, and expand their family.
6. The child is a Kenyan citizen by virtue of Article 14 (1) which provides that a person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
7. In light of the best interests of the child principle provided for under Article 53 (2) of the Constitution of Kenya, 2010. Sections 8 (1), (2) and (3) of the Children’s Act No. 29 of 2022 and the 1st Schedule of the Children’s Act No. 29 of 2022, this Court has an obligation to prioritize the child’s best interests in making decisions touching on her.
a. Article 53 of the Constitution, 2010 states that a child’s best interests are of paramount importance in every matter concerning the child.
b. Sections 8 (1), (2) and (3) of the Children’s Act No. 29 of 2022 provides as follows;
(1) In all actions concerning children, whether undertaken by public of 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.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to:-
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.
c. The First Schedule as provided for under Section 8 (1) of the Children’s Act No. 29 of 2022 provides best interests considerations to be as follows:
(1) The age, maturity, stage of development, gender, background and any other relevant characteristics of the child.
(2) Distinct special needs (if any) arising from chronic ailment or disability.
(3) The relationship of the child with the child’s parent(s) and/or guardian(s) and any other persons who may significantly affect the child’s welfare.
(4) The preference of the child, if old enough to express a meaningful preference.
(5) The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity.
(6) The stability of any proposed living arrangements for the child.
(7) The motivation of the parties involved and their capacities to give the child love, affection and guidance.
(8) The child’s adjustment to the child’s present home, school and community.
(9) The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
(10) The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
(11) Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent’s/guardian’s willingness to use those methods.
(12) The effect of the child if one parent/guardian has sole authority over the child’s upbringing.
(13) The existence of domestic abuse between the parents/guardian (s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
(14) The existence of any history of child abuse by a parent and/or guardian(s); or anyone residing in the same dwelling as the child.
(15) Where the child is under one year of age, whether the child is being breast-fed.
(16) The existence of a parent’s(s) or guardian’s(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
(17) Where there is a person residing with a parent or guardian, whether that person; -
(a) Has been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code or any other legislation.
(b) Has been adjudicated of a juvenile offence which, f the person had been an adult at the time of the offence, the person would have been convicted of a felony.
(18) Any other factor which may have a direct or indirect effect on the physical and psychological well -being of the child.
8. The report from the Ministry of Labour and Social Protection, specifically the State Department of Social Protection—Directorate of Children’s Services in Nairobi County, along with reports from the Little Angels Network, the guardian ad litem, and the proposed legal guardian, indicates that the child will be well cared for in the custody of the adoptive parents.
9. I believe that this adoption presents the child with a valuable opportunity for a significantly improved quality of life. It ensures access to a better education and a nurturing environment that fosters emotional security. The adoptive parents are committed to providing a loving and stable home, where the child can thrive and develop to their fullest potential. This supportive atmosphere will not only enhance the child's well-being but also offer her the guidance and resources necessary for a successful future.
10. In the circumstances, I allow the originating summons dated 17th July, 2024 and make the following orders:
(a) The Applicants AOMM and RWM be authorized to adopt the child known as Baby BFM.
(b) Upon adoption, the child shall be known as AMM.
(c) FM and GG be appointed as legal guardians of the child.
(d) The Registrar General is directed to make the relevant entries in the Adopted Children’s Register in respect of the child.
(e) The Registrar of Births and Deaths is directed to issue a birth certificate in respect of the child’s new name.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 31ST day of OCTOBER, 2024.
In the presence of:
Court Assistant: Beryl
Mr. Njenga Advocate for the Applicants