D.M.K VS undefined

1. The Applicants, DAVID MUTINDA KINOI and NELLY GACHIKU KAMAU vide Originating Summons dated 4th November 2022 have made an application for the adoption of BABY GABRIEL the child herein. The applicants met at University of Nairobi in 2004 and got married on 7th March 2009 and have attached a copy of marriage certificate serial number 674483. They wish to adopt the child with intention to enlarge their family, give their adopted son a sibling and be parents to a child who would otherwise lived without parents and a home.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 27th of July 2023.

3. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The 1st applicant a Mathematician and currently runs a company known as Healthix Solutions Limited, the second applicant is a Human Resource Officer at Cooperative Bank, Kenya. They have had custody of the child since 8th December 2021. They reside at Nyayo, Embakasi Court. They fully understand the consequences of an adoption order.

4. The child is estimated to have be born 7th January 2021. He was found abandoned on the street near Kamkunji, Nairobi on 12th January 2021, he was rescued by a Good Samaritan named Cindy Wamboi of ID number: 22095709 and phone number 0722118944. She rescued the child and reported the matter at Kamukunji Police Station where the case was recorded vide Occurrence Book Number 37/12/1/2021.

5. Kamukunji Police Station issued the Initial letter dated 12th January 2021. The letter was addressed to The Nest Children’s Home stating the child’s abandonment and sought assistance for the child to be placed at the Home as they try trace the mother. The child was admitted at The Nest Children’s home on the same day.

6. In a report 12th February 2021, the Sub – County Children Officer Starehe wrote a report to the Resident Magistrate Children’s Court Nairobi recommending the child to be committed to The Nest Children’s Home for care and protection for period of three (3) years.

7. On 24th February 2021 Resident Magistrate Children’s Court Milimani Committed the child to The Nest Children’s Home vide care protection number Eo35 of 2021 for period of three years. A final police letter was furnished on 10th August 2021. The letter from Kamukunji Police Station to the Nest Children’s Home talked about the abandonment of the child and stated that nobody has appeared at the station to claim the child. Therefore the home can proceed can proceed with legal action to help the child.

8. Prior to the hearing of the adoption application, LITTLE ANGELS NETWORK prepared and filed a report dated 4th August 2021 and issued a certificate serial No. 002199 declaring the child free for adoption. On 19th January 2023, the Court appointed a Guardian Ad litem DR.GILBERT KHOYO MARABI.

9. The Guardian Ad Litem, DR.GILBERT KHOYO MARABI was present in Court and presented his report dated 30th March 2023. He confirmed that he visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of.  He recommends that the Applicants be allowed to adopt the Baby.

10. An officer of the Department of Children Services, Winfred Ikinya prepared a report dated 16th February 2023, and counter signed by Nancy Waswa. The report established that the child was abandoned  on the street near Kamkunji, Nairobi on 12th January 2021, he was rescued by a Good Samaritan named Cindy Wamboi of ID number: 22095709 and phone number 0722118944. She rescued the child and reported the matter at Kamukunji Police Station where the case was recorded vide Occurrence Book Number 37/12/1/2021.

11. The Report further documents that a report dated 12th February 2021, the Sub – County Children Officer Starehe wrote a report to the Resident Magistrate Children’s Court Nairobi recommending the child to be committed to The Nest Children’s Home for care and protection for period of three (3) years and Committed the child to The Nest Children’s Home vide care protection number Eo35 of 2021 for period of three years.

12. The child having remained unclaimed at the institution for more than six months, was declared free for adoption by the Little Angels Network on 2nd September 2021 and certificate number 002199 issued. He was placed with the applicants on 8th December 2021 and has been with them since.

13. The proposed Legal Guardian DANIEL TEI KINOI and PHILIPPA MUKAMI MASINDE attended court and confirmed they are willing to take up the role of legal guardians. They are the 1st Applicant’s brother and sister in law.

14. After carefully assessing the records herein, I am satisfied that the applicant has 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 spouse 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.

15.  The Applicants are  both aged 42 years.

16. 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

17. This principle is restated  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 Act 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;

18.  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 4th November 2022 and order as follows:

i. The Applicants DAVID MUTINDA KINOI and NELLY GACHIKU KAMAU be allowed to adopt BABY GABRIEL.

ii. The Child to be known as THEODORE KYENI MUTINDA.

iii. The Child be presumed to be a Kenyan citizen by birth.

iv. The child’s date of birth is 7th January 2021 at Nairobi County.

v. DANIEL TEI KINOI and PHILIPPA MUKAMI MASINDE are hereby appointed as legal guardian of the Child.

vi. The Registrar is hereby directed to enter this adoption into the Register of Adopted Children.

vii. The Director Immigration is authorized to issue the child with a Kenyan passport

viii. The Guardian Ad litem is discharged.