JUDGMENT
1. Before the Court is the Originating Summons dated 8th December 2022 by which the Applicants seek the following orders:
1) That the Applicants be authorised to adopt the Child; BABY LINET NOREGA A.K.A. MARICO LUKA A.K.A. MARCUS who is a Kenyan citizen born on the 26th February 2018.
2) THAT upon adoption the Child be known as TOLUWANI AJANI IKE.
3) THAT BERNARD OUMA ANYANGA and EVERLYNE TRUPHENA AKOTH ONYANGO of Kenya National identity Cards Number 13236319 and 22287707 be appointed as the legal guardian of the child BABY LINET NOREGA A.KA. MARICO LUKA A.K.A. MARCUS
4) THAT the Registrar General be directed to enter this adoption into the Register of Adoptions and a subsequent birth certificate issue by the Registrar of births and Deaths
2. The Application was supported by the statements of even date made by the Applicants. The matter was canvassed by way of Viva Voce evidence on the virtual platform.
3. The applicants are husband and wife since 2009. They reside in Kileleshwa in Nairobi. The motivation to adopt the child is that they would like to have a child and they are unable to have their own biological children. They have had custody of the child since February 18 2020.
4. Both Applicants testified in Court. They have the financial means to provide for the needs of the child. The Child is currently at Rudan Junior Academy.
5. The court had the opportunity to interview the minor and was able to observe that the child appeared to be happy and identifies the Applicants as his parents.
6. A representative from the Child Welfare Society was present in Court and confirmed that they issued a certificate serial no 1004 dated 19th November 2019 declaring the Child free for adoption.
7. The Child Welfare Society also submitted two reports both dated 24th May 2022, the first confirming that the biological mother of the child voluntarily surrendered him for adoption and the second being an assessment of the suitability of the Applicants to adopt the minor. The reports confirmed the child free for adoption and positively recommended the Applicants to adopt the minor. The Court has seen the consent dated 1st August 2019, signed by the biological mother surrendering the child for adoption.
8. Also presented to court was report dated 20th February 2023 by the Department of Children’s Services prepared by Ezekiel Kimani recommending the Applicants as they have met the requirements for local adoption as provided for under the Children Act.
9. The Guardian Ad Litem, Caroline Wanjiru Mackola presented her report dated 1st March 2023, in which she confirmed that she conducted home visits and recommend he adoption of the Baby by the Applicants.
10. The proposed Legal guardian Everlyne Truphena Akoth was present in Court. She is the sister to the 1st Applicant and Sister-in-law to the 2nd Applicant. Bernard Ouma Anyanga is her husband . As a couple they are prepared to be appointed as legal guardians to the minor. They understand what the role entails and are prepared to assume parental responsibility if for any reason the Applicants are unable to discharge their role as adoptive parents.
11. After carefully assessing the records herein, I am satisfied that the applicants have fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides;
(1) The Court may make an adoption order on application by—
(a) a sole applicant; or
(b) two spouses jointly.
(2) The Court shall not make an adoption order in any case unless—
(a) the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and
(b) the applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.
(3) The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father or relative of the child.
12. The Applicants are aged 44 and 45 respectively.
13. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:
A Child’s Best interests are of paramount importance in every matter concerning the child
14. This principle is restated in Under Section 8 of the Children Act, 2022 which provides
Best interests of the child.
(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) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
Section 194 (1) (c) of the Children Act, 2022 also requires that if the adoption order is made
the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;
In view of the foregoing the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated 8th December 2022 and order as follows:
1) That the Applicants CARLOS IKELIBOI AYAYA and CATHERINE LILIAN AKINYI IKE be authorised to adopt the Child; BABY LINET NOREGA A.K.A. MARICO LUKA A.K.A. MARCUS
2) The Child is deemed to be a Kenyan citizen born on 26th February 2018.
3) THAT the Child be known as TOLUWANI AJANI IKE.
4) THAT BERNARD OUMA ANYANGA and EVERLYNE TRUPHENA AKOTH ONYANGO are appointed as the legal guardian of the child BABY LINET NOREGA A.KA. MARICO LUKA A.K.A MARCUS now known TOLUWANI AJANI IKE
5) THAT the Registrar to enter this adoption into the Register of Adoptions and a subsequent birth certificate to issue by the Registrar of births and Deaths
6) The Guardian Ad Litem is hereby discharged.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…28th ……DAY OF …April………..2023.
……………………………
P M NYAUNDI
HIGH COURT JUDGE
In the presence of ……………Ms. Githogori…Advocates for the Applicant