1. Before the court is the Originating Summons dated 8th March 2024 by which the Applicant is seeking the following orders: -
I. That the applicant be authorized to adopt, BABY ESTELLA MWANGA, a minor and a Kenyan Citizen born on 11th November 2022.
II. That upon adoption, the child to be known as JASMINE WANJIRU
III. That JOSEPH KIMAMO MAINA and ESTHER WANJIKU MUTAHI of Kenyan National Identity Card Number 24001277 and 36800351 respectively, be appointed as legal guardians of the minor.
IV. That the Registrar General be directed to enter this adoption into the Register of Adoptions and a Birth Certificate be issued to the minor by the Registrar of Births and Deaths.
2. The application was supported by statement and affidavit of even date sworn by the applicant and was canvassed by way of viva voce evidence on the virtual platform on 4th July 2024.
3. The Applicant, BETH WANJIRA MAINA is a Kenyan female adult born on 26th May 1982 and is at the time of this application aged 42 years old. A copy of the Applicant’s Kenyan Identity Card is attached to the application and marked as “BWM-1”.
4. The applicant is a business lady, currently residing in Eastleigh, Nairobi. As at the date of this application the application was not married and with no biological child of her own.
5. The Applicant testified that their main motivation for this application is the desire to have children and also to provide for the minor, the child having been found abandoned on 11th November 2022 in Thika, Kiambu County.
6. 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 minor’s right to inheritance.
ANALYSIS AND DETERMINATION
7. 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.”
8. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022. I will first examine whether the child eligible and free for adoption. Thereafter, I will proceed and examine the suitability of the Applicant before making my final orders in this application.
9. The child who is the subject of the present adoption proceedings is believed to have been born on 11th November 2022. The child was discovered abandoned by the mother on 11th November 2022 in a dustbin in Thika, Kiambu County. She was rescued by good Samaritans who a reported the matter to Thika Police Station on the same date under OB No. 10/11/11/2022.
10. Upon rescue, the child was taken to Thika Level 5 Hospital where he was admitted for a medical check-up. The Thika West Sub-County Children’s Officer confirmed to the Hospital that the baby was abandoned and therefore needed to be placed at New Life Children’s Home Trust for care and protection.
11. The baby was subsequently released from the Thika Level 5 Hospital on 20th December 20222 under a release form and in-patient discharge summary No. 643208 and placed at New Life Children’s Home Trust where he was admitted the same day.
12. On 20th December 2022, the Senior Resident Magistrate at Kenol Law Courts in Protection and Care Case No. E528/2022, on application by the Thika West Sub-County Children’s Officer committed the child to New Life Children’s Home Trust for care and protection. Committed Order is attached to the application and marked as “BWN-7”.
13. Buckner Kenya Adoption Society, a registered adoption agency in Kenya, sat and deliberated on the applicants’ application and declared the child free for adoption and issued Certificate No. 0659 of 10th July 2023 under Section 184(1) (a) of the Children Act declaring the child free for adoption.
14. On 26th September 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.
15. Efforts to trace the biological mother of the child were not successful. No one came forward to claim the child. This is evidenced in the final police letter dated 17th May 2023 from the OCS Thika Police Station.
16. 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) of the Children's Act 2022.
17. As at the date of this application, the subject child was aged one year five months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children's Act 2022.
18. 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 "
19. The subject child was abandoned at birth in Thika, Kiambu County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicants
20. 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 a suitable adoptive parent.
21. The applicant is a business lady, currently residing in Eastleigh, Nairobi. As at the date of this application the application was not married and with no biological child of her own.
22. The applicant testified that she is a business lady currently dealing with second hand clothes in Gikomba, Nairobi. According to evidence on record, the Applicant lives in Eastleigh, Nairobi and the house well partitioned and arranged to ensure the privacy and safety of the child. There are also other children within the neighborhood with which the minor socializes well.
23. Financially, the Applicant testified that she has the means to provide for the child. She annexed copies of their financial statements evidencing her income. A report from the Directorate of Children Services dated 14th May 2024 indicates that the applicant has sufficient income to cater for herself and the minor.
24. On review of the evidence on record, I am satisfied that the applicant is generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicant has deponed that she is a Christians and that she intends to raise the child in the Christian faith.
25. The Applicant was examined by a doctor and were found to be both mentally and physically fit (Page 41-42). Equally, the applicant has no criminal record and she has annexed to her application, a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex Page 43-44) evidencing that fact.
26. The applicant informed court that her family is aware of these adoption proceedings and supports the same. That her family has also embraced and bonded well with the minor.
27. The applicant has appointed her brother JOSEPH KIMAMO MAINA and his wife, ESTHER WANJIKU MUTAHI, who is also the Applicant’s sister-in-law to be the legal guardians for the child.
28. The proposed legal guardians have signed their consents dated 21st March 2024 and 21st March 2024 respectively indicating their willingness to be appointed as the legal guardians for the child. on 4th July 2024 they both testified and confirmed to court that as a legal guardian to the child, they understand their obligations to the minor.
29. In the premises, I am satisfied that the applicant is a suitable adoptive parent for the minor.
30. 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) …………”
31. On 4th July 2024, I had the opportunity to see the child virtually in court during the hearing of these proceedings. I found I could see the child comfortable in the company of the Applicant and it is therefore apparent that the child already settled as part of the Applicant’s family.
32. From the affidavit sworn by the applicant on 8th March 2024 and the accompanying Statement in support of the application of even date, it is clear that the applicant’s intentions are to protect, support, provide inheritance for and maintain the child as his own. He understands the obligations of an adoptive parent towards the child, including the right to inheritance.
33. 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.
34. 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 be and are hereby authorized to adopt, BABY ESTELLA MWANGA a minor.
ii. That upon adoption, the minor shall henceforth be known as JASMINE WANJIRU.
iii. That JOSEPH KIMAMO MAINA and ESTHER WANJIKU MUTAHI be and are hereby appointed legal guardians of the minor.
iv. The Registrar General is hereby directed to make an entry of this adoption in the Adopted Children’s Register to reflect the adoption of the minor by the Applicant.
v. The child be indicated to have been born in Kenya.
vi. The Guardian ad litem is hereby discharged.
35. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 25TH DAY OF JULY 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Mrs. Githori – for the Applicant
I. That the applicant be authorized to adopt, BABY ESTELLA MWANGA, a minor and a Kenyan Citizen born on 11th November 2022.
II. That upon adoption, the child to be known as JASMINE WANJIRU
III. That JOSEPH KIMAMO MAINA and ESTHER WANJIKU MUTAHI of Kenyan National Identity Card Number 24001277 and 36800351 respectively, be appointed as legal guardians of the minor.
IV. That the Registrar General be directed to enter this adoption into the Register of Adoptions and a Birth Certificate be issued to the minor by the Registrar of Births and Deaths.
2. The application was supported by statement and affidavit of even date sworn by the applicant and was canvassed by way of viva voce evidence on the virtual platform on 4th July 2024.
3. The Applicant, BETH WANJIRA MAINA is a Kenyan female adult born on 26th May 1982 and is at the time of this application aged 42 years old. A copy of the Applicant’s Kenyan Identity Card is attached to the application and marked as “BWM-1”.
4. The applicant is a business lady, currently residing in Eastleigh, Nairobi. As at the date of this application the application was not married and with no biological child of her own.
5. The Applicant testified that their main motivation for this application is the desire to have children and also to provide for the minor, the child having been found abandoned on 11th November 2022 in Thika, Kiambu County.
6. 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 minor’s right to inheritance.
ANALYSIS AND DETERMINATION
7. 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.”
8. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022. I will first examine whether the child eligible and free for adoption. Thereafter, I will proceed and examine the suitability of the Applicant before making my final orders in this application.
9. The child who is the subject of the present adoption proceedings is believed to have been born on 11th November 2022. The child was discovered abandoned by the mother on 11th November 2022 in a dustbin in Thika, Kiambu County. She was rescued by good Samaritans who a reported the matter to Thika Police Station on the same date under OB No. 10/11/11/2022.
10. Upon rescue, the child was taken to Thika Level 5 Hospital where he was admitted for a medical check-up. The Thika West Sub-County Children’s Officer confirmed to the Hospital that the baby was abandoned and therefore needed to be placed at New Life Children’s Home Trust for care and protection.
11. The baby was subsequently released from the Thika Level 5 Hospital on 20th December 20222 under a release form and in-patient discharge summary No. 643208 and placed at New Life Children’s Home Trust where he was admitted the same day.
12. On 20th December 2022, the Senior Resident Magistrate at Kenol Law Courts in Protection and Care Case No. E528/2022, on application by the Thika West Sub-County Children’s Officer committed the child to New Life Children’s Home Trust for care and protection. Committed Order is attached to the application and marked as “BWN-7”.
13. Buckner Kenya Adoption Society, a registered adoption agency in Kenya, sat and deliberated on the applicants’ application and declared the child free for adoption and issued Certificate No. 0659 of 10th July 2023 under Section 184(1) (a) of the Children Act declaring the child free for adoption.
14. On 26th September 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.
15. Efforts to trace the biological mother of the child were not successful. No one came forward to claim the child. This is evidenced in the final police letter dated 17th May 2023 from the OCS Thika Police Station.
16. 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) of the Children's Act 2022.
17. As at the date of this application, the subject child was aged one year five months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children's Act 2022.
18. 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 "
19. The subject child was abandoned at birth in Thika, Kiambu County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicants
20. 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 a suitable adoptive parent.
21. The applicant is a business lady, currently residing in Eastleigh, Nairobi. As at the date of this application the application was not married and with no biological child of her own.
22. The applicant testified that she is a business lady currently dealing with second hand clothes in Gikomba, Nairobi. According to evidence on record, the Applicant lives in Eastleigh, Nairobi and the house well partitioned and arranged to ensure the privacy and safety of the child. There are also other children within the neighborhood with which the minor socializes well.
23. Financially, the Applicant testified that she has the means to provide for the child. She annexed copies of their financial statements evidencing her income. A report from the Directorate of Children Services dated 14th May 2024 indicates that the applicant has sufficient income to cater for herself and the minor.
24. On review of the evidence on record, I am satisfied that the applicant is generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicant has deponed that she is a Christians and that she intends to raise the child in the Christian faith.
25. The Applicant was examined by a doctor and were found to be both mentally and physically fit (Page 41-42). Equally, the applicant has no criminal record and she has annexed to her application, a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex Page 43-44) evidencing that fact.
26. The applicant informed court that her family is aware of these adoption proceedings and supports the same. That her family has also embraced and bonded well with the minor.
27. The applicant has appointed her brother JOSEPH KIMAMO MAINA and his wife, ESTHER WANJIKU MUTAHI, who is also the Applicant’s sister-in-law to be the legal guardians for the child.
28. The proposed legal guardians have signed their consents dated 21st March 2024 and 21st March 2024 respectively indicating their willingness to be appointed as the legal guardians for the child. on 4th July 2024 they both testified and confirmed to court that as a legal guardian to the child, they understand their obligations to the minor.
29. In the premises, I am satisfied that the applicant is a suitable adoptive parent for the minor.
30. 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) …………”
31. On 4th July 2024, I had the opportunity to see the child virtually in court during the hearing of these proceedings. I found I could see the child comfortable in the company of the Applicant and it is therefore apparent that the child already settled as part of the Applicant’s family.
32. From the affidavit sworn by the applicant on 8th March 2024 and the accompanying Statement in support of the application of even date, it is clear that the applicant’s intentions are to protect, support, provide inheritance for and maintain the child as his own. He understands the obligations of an adoptive parent towards the child, including the right to inheritance.
33. 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.
34. 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 be and are hereby authorized to adopt, BABY ESTELLA MWANGA a minor.
ii. That upon adoption, the minor shall henceforth be known as JASMINE WANJIRU.
iii. That JOSEPH KIMAMO MAINA and ESTHER WANJIKU MUTAHI be and are hereby appointed legal guardians of the minor.
iv. The Registrar General is hereby directed to make an entry of this adoption in the Adopted Children’s Register to reflect the adoption of the minor by the Applicant.
v. The child be indicated to have been born in Kenya.
vi. The Guardian ad litem is hereby discharged.
35. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 25TH DAY OF JULY 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Mrs. Githori – for the Applicant