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JudgmentC.N.M AND J.N.O VS D.K.A AND B.N5 min read

C.N.M AND J.N.O VS D.K.A AND B.N

High Court at Kisii High Court · · Odera Teresa Achieng


The applicants herein moved this court by way of chamber summons dated 9.11.21 seeking the following orders: -

  1. Spent
  2. That N.G.M & A.O be authorized to adopt Baby N.N a minor aged 8.
  3. That upon making of the adoption orders, the minor be known as NNO.
  4. That the applicants be issued with an Adoption certificate and the name of the adopted minor be entered in the adoption register.
  5. That Elijah Ombasa Onsare of P.O Box 3908-40200 Kisii be appointed as guardian of the child herein.
  6. That the costs be in the cause

The Application is supported by the joint supporting affidavit of the two applicants herein dated 9.11.21. They said that Little Angels Network informed them that the child’s mother signed a consent to give up the child for adoption. Further that they have annexed supporting documents to confirm that they are financially stable and able to take care of the child. They verified the correctness of the originating summons and statement filed herein. Further that the intended guardian is well known to them and has have no interest adverse to that of the child herein and he is financially endowed and hence will be able to take care of the child in the event that they are not there.

The Applicants also filed a statement in support of the application for adoption and stated that they are a married couple as per their marriage certificate NGM -03 the 1st applicant is a correction officer born in 1962 and working in the USA while the 2nd applicant is a nurse born in 1967 and working in Kenya. They said they hail from Kisii County as per the area chief’s letter NGM -01 and that they have consent from their children to adopt NGM -02 Also that the child is a Christian and a Kenyan citizen and they have not received any financial gain to adopt the child.

EOO the intended guardian filed his affidavit sworn on 9.11.12 in which he consented to being appointed as a guardian to the child herein. Further that he is a person of means being a teacher as per his payslip and national identity card - HNO 01. He said he knows the applicants as his close family friends and that they have a fixed abode and they are people of means. The said that the child was placed in their custody by Little Angels Network as per the certificate of placement -NGM -04.

The Child was availed on court on 23.11.23 and she indicated that she has no objection to be adopted by the applicants who are her uncle and aunt, she said the aunt visits her during school holidays and brings her goodies.  Caroline Okuta the programme office of Little Angels Network (PW1) testified before this court and stated that their committee considered the application for adoption, assessed the applicants they were approved on    2.9.21 and the child was declared free for adoption on 5.1.22 She gave the history of the child stating that she a nice to the 2nd application whom she got when she was a minor while still in School and that the mother gave consent for her adoption by her sister

 ANALYSIS AND DETERMINATION

I have considered the summons before me the entire evidence on record as well as the various requisite reports filed herein.

The Subject child herein is aged about 12 at the moment and was born out of wedlock by her Mother M.O who voluntarily gave her up for adoption and was declared free for adoption on 2.9.21 as per the certificate and the report of the Little Angles Network (an adoption agency) dated 5.1.22 filed in court on 9.9.22 the Kisii County Children Coordinator vide their report dated 1.7.24 filed in court on the same date. The mother testified in court and reiterated that she had consented to the intended adoption by the applicants who are her sister and her brother in law.

On whether the applicants are fit to adopt the children herein. They are both citizens of Kenya as evidence by their national identity cards which indicate that they were born in the years 1962 and 1967 respectively. Section 186 of the Children Act provides that for one to qualify to adopt a child, he must be between the age of 25 and 65 years old.  The applicants are thus within the legal age limit for adoption under the Act. 

It has emerged that the applicants are a married couple working for gain as correctional officer and nurse respectively in USA.  Though they work in USA they have a home in Kenya and also have good community ties as per the report of guardian ad litem.   They annexed their bank statements showing that they are people of means and hence are able to fully provide for the basic needs of the children. The applicants told the court that they have no interest adverse to that of the child and the child has been in their custody   from the year 2021 and have been providing his basic needs. The herein child was availed in court and I noted that she looked well kempt, jolly, and she has bonded well with the applicants.

The applicants are related to the child being his uncle and aunt. This is a case of kinship adoption. Before enactment of Children Act 2022, Kinship adoption was being informally practiced in Kenya where by relatives were taking up their orphaned relatives and children from poor families and care of them as their own without any formal documentation. This posed several challenged to the “adoptive’’ parents. Kinship adoption which is now entrenched in section of the Children Act is thus God sent to Kenyans as once the child is adopted by a relative, he remains within the warmth of the extended family. The other family members are also able to monitor the development of the child and report any cases of abuse. 

I have carefully considered application, the fact that the applicants are related to the child herein, the supporting documents, and it is clear that back ground checks were done on the applicants by the police, children department, the area chief and they were found to be persons of good character and who will be able to raise the child well. 

In the upshot, I find that the applicants have established that they will provide the child with privileged education and upbringing within the extended family.  They are thus able and fit to adopt the child herein in her best interest.

  I allow the originating summons dated 9.11.21 and I proceed to make the following orders:

a.  That NGM   & AO be and is hereby authorized to adopt the minor N.O

.b. That the Minor be known as N.NG

c. That the applicants be issued with an adoption certificate and the names of the adopted minor be entered into the register of adoption.

d. That Elijah Ombasa Onsare Po. Box 40200 Kisii be and is hereby is appointed as legal guardian of the said adopted minor.

e.  That GMO is hereby discharged as ad litem   guardian of the subject herein.

f. Costs in the cause.


    C.N.M AND J.N.O VS D.K.A AND B.N C.N.M AND J.N.O VS D.K.A AND B.N