1. Vide an Originating Summons dated 10th July 2024, Boniface Mutua Kiilu and Maureen Mbithe Michael, whom I shall hereafter refer to together as the Joint Applicants, seek the following orders:-
(1) Pursuant to Article 14(4) of the Constitution of Kenya, 2010 and section 7(1) of the Children Act, 2022, this honourable court be pleased to declare the child, Baby Joshua Blessings, a Kenyan citizen by birth;
(2) Pursuant to the provisions of section 187 of the Children Act, 2022, this Honourable Court be pleased to dispense with the requirement of the consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;
(3) The Applicants Boniface Mutua Kiilu and Maureen Mbithe Michael be authorized to adopt Baby Joshua Blessings;
(4) Upon the making of the adoption order, the child be known as Joshua Kyama Mutua;
(5) Upon the making of the adoption order, Jonathan Nyamai Michael be appointed as Legal Guardian of the child as provided for by the provisions of section 195 of the Children Act, 2022;
(6) Upon the making of the adoption order, the Registrar General do make an entry recording the adoption and the date of birth of the child as 3rd January 2021 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
(7) The cost of this application be costs of the cause.
2. The Joint Applicants are a married couple born on 10th March 1983 and 26th April 1982, respectively. They got married on 21st April 2008 at the Registrar of Marriages office in Mombasa under the Marriage Act (now repealed). Their union has not been blessed with any issues. Both applicants are of the African race, have sound minds, profess the Christian religion, and reside in Jomvu Aldina, Mombasa. They do not have criminal records and describe themselves in their joint statement as being financially stable. The child, the subject of the adoption proceedings, has been under their joint care since 8th March 2023.
3. The child, the subject of these adoption proceedings, was found having been abandoned along the road at Kwa Saitoti area of Noonkopir area, Kitengela, by Mr Jackson Wario on 3rd May 2021 as he was going to work. At the time he was found, the child was approximately four months old. The identity of his mother is unknown. The matter was reported to Kitengela Police Station vide OB No 25/03/05/2021. Efforts to trace his parents haven’t borne fruit to date.
4. The child was admitted to Openhand Children's Home on 7th May 2021. He was committed to the said institution on 15th June 2021 vide Kajiado Protection & Care Cause No 271 of 2021 for a period of 3 years. He was declared as being free for adoption on 31st January 2023. The certification of Declaring a Child Free for Adoption, dated 31st January 2023, bears the serial number 002323 and was issued by the Little Angels Network.
5. The adoption agency also assessed the suitability of the prospective adoptive parents. It found them to be suitable adoptive parents. The report to that effect is dated 3rd November 2021.
6. The Applicant filed together with the Originating Summons a Chamber Summons applicant dated 10th July 2024, vide which she sought to have Susan Nangila Simiyu Ochieng appointed as a guardian ad litem and for the County Director of Children Services, through the Children Department Mombasa ordered to conduct a social enquiry and to prepare and file the requisite report.
7. I heard the said Chamber Summons application dated 10th July 2024 on 1st October 2024. Being satisfied that Susan Nangila Simiyu was suitable, I appointed her as a guardian ad litem in respect of these adoption proceedings. I directed her to conduct a home visit and to prepare and file the requisite report within 30 days of the said date. I ordered the Director of Children's Services to conduct a social enquiry and to prepare and file the requisite report within a similar period of time.
8. The Originating Summons was heard on 31st October and 27th November 2024. A total of six witnesses testified. I shall reproduce a summary of the witnesses’ respective testimonies below.
9. The first Witness was Joshua Mwalimu Wambua. Mr Wambua is a social worker with Little Angels Network. He testified that they assessed the suitability of the Joint Applicants and released the child for adoption. They also issued the certificate freeing the child for adoption. The certificate declaring the child a s being free for adoption is dated 31st January 2023 and bears serial number 002323. He testified that the Applicants met all the requirements and recommended the adoption.
10. Jonathan Nyamai Michael was the second witness. He is the proposed legal guardian Mr. Nyamai is the brother of the 2nd applicant. He resides in Sabaki, Nairobi and is an engineer. He testified that he was aware of the role of a legal guardian and was ready to take up the said responsibility. He testified that his Wife was agreeable to the proposal. He further testified that he had the means to take care of the adoptive child should he be required to do so.
11. The third witness was Boniface Mutua Kiilu. He is a resident of Jomvu in Mombasa and is engaged in business. Mr. Kiilu is the 1st Applicant. Maureen Mbithe Michael is his wife of over 16 years. He testified that they wished to adopt the child and that they would call him Joshua Kyama Mutua, f the application was allowed.
12. Mr Kiilu’s wife, Ms Michael, was the fourth Witness. Ms Michael resides at Kenya Petroleum Refineries Ltd. It was her testimony that they wished to adopt Baby Joshua Blessing. The baby was received undo their case on 5th March 2023. She averred that she knew what adoption entailed and expressed her readiness to adopt the subject child.
13. Susan Nangila Simiyu was the 5th Witness. She is the guardian ad litem appointed by this Court on 1st October 2024. She testified that she visited the home of the Joint Applicants on several occasions and made an assessment. Thereafter she wrote a report dated 17th October 2024. She testified that the Joint Applicants had bonded well with the child and were taking good care of him as though he was their own.
14. The last Witness was Ms. Njeri Mwangi. Ms. Mwangi is the Children Officer working for the Directorate of Children Services at Mombasa. She testified that her employer conducted a home visit on 12th November 2024 and wrote a report dated 18th November 2024. Their finding was that the child had bonded well with the Joint Applicants. In her view, the Applicants met all the requirements. For that reason, she recommended the adoption.
15. I have considered the application herein, the documents in support thereof and evidence of the various witnesses. The issues that emerge for determination are whether the child is available for adoption, if the applicants are fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
16. I have already set out the circumstances under which the child was found. The child was abandoned about 4 months after birth. Nobody has come forward to claim him. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. Therefore, the need for consent pursuant to sections 186(8) and 187 of the Children Act 2022 is dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
17. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned within a few months of his birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are unknown is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is presumed to be a Kenyan citizen by birth.
18. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.
19. Concerning the Joint Applicants’ suitability, they are respectively Kenyan citizens, aged 41 and 42 years, respectively, at the time of this judgment, which places them within the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. From the records I have seen, the Joint Applicants have the means to care for the two children they are adopting. They have no criminal records. Since the placement of the two minors in their joint custody, the child has fully bonded with them. The Joint Applicants understand the consequences of adoption and know that once an adoption order is made, it is permanent.
20. Consequently, I do not doubt that they meets the requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
21. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act, 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.
22. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
23. The child herein was found abandoned. He, therefore, needs necessities like food, shelter, education and clothing. He has fully integrated with the Joint Applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
24. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Joshua Blessings, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Joint Applicants, Boniface Mutua Kiilu and Maureen Mbithe Michael, are hereby authorised to adopt Baby Joshua Blessings;
4. Baby Joshua Blessings shall henceforth be known as Joshua Kyama Mutua;
5. I appoint Jonathan Nyamai Michael as the Legal Guardian of Joshua Kyama Mutua and entrust him with the responsibility of taking care of the child in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of Joshua Kyama Mutua before he attains the age of majority;
6. The Register General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Joshua Kyama Mutua as being 3rd January 2021 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022.
7. The guardian ad litem, Susan Nangila Simiyu, is hereby discharged.
25. I make no orders regarding costs as this is a non-contentious adoption cause.
26. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.
(1) Pursuant to Article 14(4) of the Constitution of Kenya, 2010 and section 7(1) of the Children Act, 2022, this honourable court be pleased to declare the child, Baby Joshua Blessings, a Kenyan citizen by birth;
(2) Pursuant to the provisions of section 187 of the Children Act, 2022, this Honourable Court be pleased to dispense with the requirement of the consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;
(3) The Applicants Boniface Mutua Kiilu and Maureen Mbithe Michael be authorized to adopt Baby Joshua Blessings;
(4) Upon the making of the adoption order, the child be known as Joshua Kyama Mutua;
(5) Upon the making of the adoption order, Jonathan Nyamai Michael be appointed as Legal Guardian of the child as provided for by the provisions of section 195 of the Children Act, 2022;
(6) Upon the making of the adoption order, the Registrar General do make an entry recording the adoption and the date of birth of the child as 3rd January 2021 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
(7) The cost of this application be costs of the cause.
2. The Joint Applicants are a married couple born on 10th March 1983 and 26th April 1982, respectively. They got married on 21st April 2008 at the Registrar of Marriages office in Mombasa under the Marriage Act (now repealed). Their union has not been blessed with any issues. Both applicants are of the African race, have sound minds, profess the Christian religion, and reside in Jomvu Aldina, Mombasa. They do not have criminal records and describe themselves in their joint statement as being financially stable. The child, the subject of the adoption proceedings, has been under their joint care since 8th March 2023.
3. The child, the subject of these adoption proceedings, was found having been abandoned along the road at Kwa Saitoti area of Noonkopir area, Kitengela, by Mr Jackson Wario on 3rd May 2021 as he was going to work. At the time he was found, the child was approximately four months old. The identity of his mother is unknown. The matter was reported to Kitengela Police Station vide OB No 25/03/05/2021. Efforts to trace his parents haven’t borne fruit to date.
4. The child was admitted to Openhand Children's Home on 7th May 2021. He was committed to the said institution on 15th June 2021 vide Kajiado Protection & Care Cause No 271 of 2021 for a period of 3 years. He was declared as being free for adoption on 31st January 2023. The certification of Declaring a Child Free for Adoption, dated 31st January 2023, bears the serial number 002323 and was issued by the Little Angels Network.
5. The adoption agency also assessed the suitability of the prospective adoptive parents. It found them to be suitable adoptive parents. The report to that effect is dated 3rd November 2021.
6. The Applicant filed together with the Originating Summons a Chamber Summons applicant dated 10th July 2024, vide which she sought to have Susan Nangila Simiyu Ochieng appointed as a guardian ad litem and for the County Director of Children Services, through the Children Department Mombasa ordered to conduct a social enquiry and to prepare and file the requisite report.
7. I heard the said Chamber Summons application dated 10th July 2024 on 1st October 2024. Being satisfied that Susan Nangila Simiyu was suitable, I appointed her as a guardian ad litem in respect of these adoption proceedings. I directed her to conduct a home visit and to prepare and file the requisite report within 30 days of the said date. I ordered the Director of Children's Services to conduct a social enquiry and to prepare and file the requisite report within a similar period of time.
8. The Originating Summons was heard on 31st October and 27th November 2024. A total of six witnesses testified. I shall reproduce a summary of the witnesses’ respective testimonies below.
9. The first Witness was Joshua Mwalimu Wambua. Mr Wambua is a social worker with Little Angels Network. He testified that they assessed the suitability of the Joint Applicants and released the child for adoption. They also issued the certificate freeing the child for adoption. The certificate declaring the child a s being free for adoption is dated 31st January 2023 and bears serial number 002323. He testified that the Applicants met all the requirements and recommended the adoption.
10. Jonathan Nyamai Michael was the second witness. He is the proposed legal guardian Mr. Nyamai is the brother of the 2nd applicant. He resides in Sabaki, Nairobi and is an engineer. He testified that he was aware of the role of a legal guardian and was ready to take up the said responsibility. He testified that his Wife was agreeable to the proposal. He further testified that he had the means to take care of the adoptive child should he be required to do so.
11. The third witness was Boniface Mutua Kiilu. He is a resident of Jomvu in Mombasa and is engaged in business. Mr. Kiilu is the 1st Applicant. Maureen Mbithe Michael is his wife of over 16 years. He testified that they wished to adopt the child and that they would call him Joshua Kyama Mutua, f the application was allowed.
12. Mr Kiilu’s wife, Ms Michael, was the fourth Witness. Ms Michael resides at Kenya Petroleum Refineries Ltd. It was her testimony that they wished to adopt Baby Joshua Blessing. The baby was received undo their case on 5th March 2023. She averred that she knew what adoption entailed and expressed her readiness to adopt the subject child.
13. Susan Nangila Simiyu was the 5th Witness. She is the guardian ad litem appointed by this Court on 1st October 2024. She testified that she visited the home of the Joint Applicants on several occasions and made an assessment. Thereafter she wrote a report dated 17th October 2024. She testified that the Joint Applicants had bonded well with the child and were taking good care of him as though he was their own.
14. The last Witness was Ms. Njeri Mwangi. Ms. Mwangi is the Children Officer working for the Directorate of Children Services at Mombasa. She testified that her employer conducted a home visit on 12th November 2024 and wrote a report dated 18th November 2024. Their finding was that the child had bonded well with the Joint Applicants. In her view, the Applicants met all the requirements. For that reason, she recommended the adoption.
15. I have considered the application herein, the documents in support thereof and evidence of the various witnesses. The issues that emerge for determination are whether the child is available for adoption, if the applicants are fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
16. I have already set out the circumstances under which the child was found. The child was abandoned about 4 months after birth. Nobody has come forward to claim him. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. Therefore, the need for consent pursuant to sections 186(8) and 187 of the Children Act 2022 is dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
17. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned within a few months of his birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are unknown is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is presumed to be a Kenyan citizen by birth.
18. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.
19. Concerning the Joint Applicants’ suitability, they are respectively Kenyan citizens, aged 41 and 42 years, respectively, at the time of this judgment, which places them within the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. From the records I have seen, the Joint Applicants have the means to care for the two children they are adopting. They have no criminal records. Since the placement of the two minors in their joint custody, the child has fully bonded with them. The Joint Applicants understand the consequences of adoption and know that once an adoption order is made, it is permanent.
20. Consequently, I do not doubt that they meets the requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
21. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act, 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.
22. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
23. The child herein was found abandoned. He, therefore, needs necessities like food, shelter, education and clothing. He has fully integrated with the Joint Applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
24. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Joshua Blessings, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Joint Applicants, Boniface Mutua Kiilu and Maureen Mbithe Michael, are hereby authorised to adopt Baby Joshua Blessings;
4. Baby Joshua Blessings shall henceforth be known as Joshua Kyama Mutua;
5. I appoint Jonathan Nyamai Michael as the Legal Guardian of Joshua Kyama Mutua and entrust him with the responsibility of taking care of the child in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of Joshua Kyama Mutua before he attains the age of majority;
6. The Register General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Joshua Kyama Mutua as being 3rd January 2021 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022.
7. The guardian ad litem, Susan Nangila Simiyu, is hereby discharged.
25. I make no orders regarding costs as this is a non-contentious adoption cause.
26. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.