Before this Court is the Originating Summons dated 21 st July 2023 by which the Applicant DANIEL NDUNGU GITAHI seeks the following orders:-
“1. THAT the Applicant herein be authorized to adopt the said
child.
2. THAT the child be presumed to be a Kenyan citizen having
been born in Kenya.
THAT the Guardian Ad Litem PAUL NDERI MUIGAI be
discharged and CATHERINE WANGARI GITAHI be
appointed as the legal guardian of the minor herein in the
event that the applicant herein is in any way incapacitated
or in any way unable to discharge his parental obligations.
THAT the Court does issue such other orders as may be necessary in the best interest of the child.
The Application was supported by the Affidavit of even date sworn by the
Applicant. The matter was heard by way of Viva Voce evidence on the virtual platform.
The Applicant is an adult Kenya citizen who currently resides in the
United States of America. The Applicant is single and has no biological children of his own. The Applicant wishes to adopt the subject child who is his niece being the child of his late sister.
The Applicant confirmed to the court that he fully understands the legal
implications of an adoption order. He undertakes to accord to the subject child all rights which are due to a biological child.
ANALYSIS AND DETERMINATION
I have considered this application for adoption, the evidence adduced in
support thereof as well as the various reports filed in court.
The prerequisites for adoption are set out in Section 184 (1) (a) and (b) of the Children’s Act 2022 as follows:-
“(1) A person shall not commence any arrangement for
the adoption of a child unless:-
The council, in accordance with the rules,
has declared the child free for adoption.
The child has attained the age of six
weeks.”
The subject child is a girl child who was born on 6 th August 2016 . A
copy of her birth certificate Serial Number 6701790 is annexed to the summons. As such the subject child is now aged nine (9) years old and is well above the six (6) week age limit provided for in law.
CHANGE TRUST which is a registered adoption agency have annexed to
the Summons a copy of their certificate Serial Number 00728 dated 11 th October 2024 declaring the child Free for Adoption. Accordingly I am satisfied that the legal pre-requisites for an adoption order have been met.
The duty of this court is to review the evidence and material before it to
determine whether the Applicant is a suitable adoptive parent.
10. The Applicant is a Kenyan Citizen. He has annexed a copy of his National
Identity Card Serial No. 29155296 .
11. The Applicant told the Court that he is not married and has no
biological children of his own. Section 186 (1) of the Children Act
2022 provides that an adoption order may only be made in respect of an Applicant who has attained the age of twenty five (25) years but is not above the age of sixty five (65 ). The Applicants Identity Card indicates that he was born on 31 st July 1992 . He is therefore now aged thirty three (33) years old and qualifies to adopt a child.
12. The previous Children Act 2001 prohibited the making of an adoption
order in favour of a sole male Applicant in respect of a female child.
However Section 486 (4) of new 2022 Children Act provides that
“(4) The court shall not make an adoption order in respect of a sole male applicant, unless the applicant is a blood relative of the child.” [own emphasis]
13. Similarly Section 186(b) of the 2022 Act provides as follows:-
“(6) The Court shall not make an adoption order in favour of an applicant or joint applicants if the applicant or joint applicants or any of them …………..
(a)………………………………….
(b) ……………………………………..
(c)………………………………………
(d)……………………………………………….
Is a sole male applicant except where the applicant is a biological relative of the child; or
………………………………………….”
14. It is therefore clear that the previous prohibition against a sole male
applicant adopting a child in Kenya no longer exists. There is however
the rider that the applicant in question should be a blood relative of the
child.
15. In this case the applicant being a brother to the child’s biological mother
is the maternal uncle to the child. As such the applicant is a blood
relative to the child and may be authorized to adopt said child.
16. The Applicant told the court that he currently resides in the United
States of America having moved there in the year 2014 , upon
securing a Green Card. The Applicant stated that he currently works as
a software Engineer for Lumen Technologies in the state of
Pennsylvania .
17. The Applicant has annexed copies of his financial statements in respect
of checking account held with Capital one . These statements reveal
that the applicant is financially secure and has the capacity to provide
for the needs of the subject child.
18. The Applicant has also annexed to his further list of documents a
Clearance certificate issued by the Directorate of Criminal
Investigations proving that he does not have a criminal record.
19. Finally the applicant has appointed his mother CATHERINE
WANGARI GITAHI as the legal Guardian for the child. The said legal
guardian has signed a consent dated 19 th July 2025 indicating her
willingness to be the legal guardian for the child.
20. The subject child is a girl who was born in August 2016 . The child’s
biological mother SOFIA MUTHONI GITAHI unfortunately passed
away on 20 th February 2022 . A copy of the Death Certificate Serial
Number 1372505 is annexed to the Summons.
21. Following the demise of the mother the child has been living with her
maternal grand-mother in Naromoru, Nyeri County .
22. The child’s biological father has never featured in her life both before
and after the demise of the child’s mother. The Applicant and PW2
who is the child’s grandmother told the court that they are not aware
of the identity or the whereabouts of the child’s biological father.
Indeed in the child’s birth certificate the Section indicating the name of
‘ Father’ has been left blank.
23. Section 186 (8) of the children Act 2022 provides that an
application for consent must be accompanied by the written consent
of the parent or legal guardian of the child.
24. Section 187 (c) provides that;-
“ 187 (1) The court may dispense with any consent required under Section 186 (8) paragraphs (a) (b) and (c) if the Court is satisfied;-
(a)……………………………………..
(b)……………………………………..
(c) In any other case in respect of the consents required
under Section 186 (8) (c) and (9), the person whose
consent is required cannot be found or is incapable of
giving his or her consent, or that his or her consent has
been unreasonably withheld.”
25. In line with the above provision I hereby dispense with the requirement
for consent from the child’s biological father. The child’s guardian
(grandmother) testified before court. She indicated that she consents to this adoption.
26. In deciding upon any matter involving a child, courts are obliged to give
priority to the ‘ best interests’ of the said child. Section 8 (1) of the
Children Act 2022 provides that:-
“(8) (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies
The best interests of the child shall be the priority
consideration” [own emphasis]
27. This is a child who lost the only parent she knew at the tender age of
six (6) years . The child’s maternal grandmother stepped up and took in the child whom she has been raising since the demise of the child’s mother. The grandmother told the court that due to her advanced age, she does not feel capable of providing for the needs of the child as she continues to grow and mature.
28. The Applicant who is the child’s Uncle is a blood relative. He has
expressed a willingness to take over the care and upkeep of the child. Indeed PW2 confirmed that the Applicant has since the mother’s death been paying for the child’s education and has been sending money regularly to provide for the needs of the child.
29. I was able to interview the child. She was a lively girl who appeared
clean and well cared for. The child confirmed that she knows the
applicant as her uncle but she did not understand the meaning of
‘ adoption’
30. This is a ‘ kinship adoption’ as defined by Section 2 of the Act. The
child will remain with the same family and will continue to have regular
contact with her blood relatives.
31. I have perused the report prepared by the Guardian Ad litem the
Adoption Agency and the Director children’s services. All three reports
were positive and all recommend the adoption.
32. I am satisfied that this adoption does serve the best interest of the
subject child. Accordingly I allow the application and hereby make the
following orders;-
“1. The Applicant DANIEL NDUNGU GITHAHI is
authorized to adopt the child known as JANELLE
WANGARI.
2. Upon adoption the child will be known as JANELLE
WANGARI.
3. CATHERINE WANGARI GITAHI is appointed as the
legal guardian for the child.
The Registrar-General is directed to make the relevant
entry in the Adopted children’s Register.
5. No order on costs.
Dated in Nyeri this 25 th day of July 2025
……………………………………….
“1. THAT the Applicant herein be authorized to adopt the said
child.
2. THAT the child be presumed to be a Kenyan citizen having
been born in Kenya.
THAT the Guardian Ad Litem PAUL NDERI MUIGAI be
discharged and CATHERINE WANGARI GITAHI be
appointed as the legal guardian of the minor herein in the
event that the applicant herein is in any way incapacitated
or in any way unable to discharge his parental obligations.
THAT the Court does issue such other orders as may be necessary in the best interest of the child.
The Application was supported by the Affidavit of even date sworn by the
Applicant. The matter was heard by way of Viva Voce evidence on the virtual platform.
The Applicant is an adult Kenya citizen who currently resides in the
United States of America. The Applicant is single and has no biological children of his own. The Applicant wishes to adopt the subject child who is his niece being the child of his late sister.
The Applicant confirmed to the court that he fully understands the legal
implications of an adoption order. He undertakes to accord to the subject child all rights which are due to a biological child.
ANALYSIS AND DETERMINATION
I have considered this application for adoption, the evidence adduced in
support thereof as well as the various reports filed in court.
The prerequisites for adoption are set out in Section 184 (1) (a) and (b) of the Children’s Act 2022 as follows:-
“(1) A person shall not commence any arrangement for
the adoption of a child unless:-
The council, in accordance with the rules,
has declared the child free for adoption.
The child has attained the age of six
weeks.”
The subject child is a girl child who was born on 6 th August 2016 . A
copy of her birth certificate Serial Number 6701790 is annexed to the summons. As such the subject child is now aged nine (9) years old and is well above the six (6) week age limit provided for in law.
CHANGE TRUST which is a registered adoption agency have annexed to
the Summons a copy of their certificate Serial Number 00728 dated 11 th October 2024 declaring the child Free for Adoption. Accordingly I am satisfied that the legal pre-requisites for an adoption order have been met.
The duty of this court is to review the evidence and material before it to
determine whether the Applicant is a suitable adoptive parent.
10. The Applicant is a Kenyan Citizen. He has annexed a copy of his National
Identity Card Serial No. 29155296 .
11. The Applicant told the Court that he is not married and has no
biological children of his own. Section 186 (1) of the Children Act
2022 provides that an adoption order may only be made in respect of an Applicant who has attained the age of twenty five (25) years but is not above the age of sixty five (65 ). The Applicants Identity Card indicates that he was born on 31 st July 1992 . He is therefore now aged thirty three (33) years old and qualifies to adopt a child.
12. The previous Children Act 2001 prohibited the making of an adoption
order in favour of a sole male Applicant in respect of a female child.
However Section 486 (4) of new 2022 Children Act provides that
“(4) The court shall not make an adoption order in respect of a sole male applicant, unless the applicant is a blood relative of the child.” [own emphasis]
13. Similarly Section 186(b) of the 2022 Act provides as follows:-
“(6) The Court shall not make an adoption order in favour of an applicant or joint applicants if the applicant or joint applicants or any of them …………..
(a)………………………………….
(b) ……………………………………..
(c)………………………………………
(d)……………………………………………….
Is a sole male applicant except where the applicant is a biological relative of the child; or
………………………………………….”
14. It is therefore clear that the previous prohibition against a sole male
applicant adopting a child in Kenya no longer exists. There is however
the rider that the applicant in question should be a blood relative of the
child.
15. In this case the applicant being a brother to the child’s biological mother
is the maternal uncle to the child. As such the applicant is a blood
relative to the child and may be authorized to adopt said child.
16. The Applicant told the court that he currently resides in the United
States of America having moved there in the year 2014 , upon
securing a Green Card. The Applicant stated that he currently works as
a software Engineer for Lumen Technologies in the state of
Pennsylvania .
17. The Applicant has annexed copies of his financial statements in respect
of checking account held with Capital one . These statements reveal
that the applicant is financially secure and has the capacity to provide
for the needs of the subject child.
18. The Applicant has also annexed to his further list of documents a
Clearance certificate issued by the Directorate of Criminal
Investigations proving that he does not have a criminal record.
19. Finally the applicant has appointed his mother CATHERINE
WANGARI GITAHI as the legal Guardian for the child. The said legal
guardian has signed a consent dated 19 th July 2025 indicating her
willingness to be the legal guardian for the child.
20. The subject child is a girl who was born in August 2016 . The child’s
biological mother SOFIA MUTHONI GITAHI unfortunately passed
away on 20 th February 2022 . A copy of the Death Certificate Serial
Number 1372505 is annexed to the Summons.
21. Following the demise of the mother the child has been living with her
maternal grand-mother in Naromoru, Nyeri County .
22. The child’s biological father has never featured in her life both before
and after the demise of the child’s mother. The Applicant and PW2
who is the child’s grandmother told the court that they are not aware
of the identity or the whereabouts of the child’s biological father.
Indeed in the child’s birth certificate the Section indicating the name of
‘ Father’ has been left blank.
23. Section 186 (8) of the children Act 2022 provides that an
application for consent must be accompanied by the written consent
of the parent or legal guardian of the child.
24. Section 187 (c) provides that;-
“ 187 (1) The court may dispense with any consent required under Section 186 (8) paragraphs (a) (b) and (c) if the Court is satisfied;-
(a)……………………………………..
(b)……………………………………..
(c) In any other case in respect of the consents required
under Section 186 (8) (c) and (9), the person whose
consent is required cannot be found or is incapable of
giving his or her consent, or that his or her consent has
been unreasonably withheld.”
25. In line with the above provision I hereby dispense with the requirement
for consent from the child’s biological father. The child’s guardian
(grandmother) testified before court. She indicated that she consents to this adoption.
26. In deciding upon any matter involving a child, courts are obliged to give
priority to the ‘ best interests’ of the said child. Section 8 (1) of the
Children Act 2022 provides that:-
“(8) (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies
The best interests of the child shall be the priority
consideration” [own emphasis]
27. This is a child who lost the only parent she knew at the tender age of
six (6) years . The child’s maternal grandmother stepped up and took in the child whom she has been raising since the demise of the child’s mother. The grandmother told the court that due to her advanced age, she does not feel capable of providing for the needs of the child as she continues to grow and mature.
28. The Applicant who is the child’s Uncle is a blood relative. He has
expressed a willingness to take over the care and upkeep of the child. Indeed PW2 confirmed that the Applicant has since the mother’s death been paying for the child’s education and has been sending money regularly to provide for the needs of the child.
29. I was able to interview the child. She was a lively girl who appeared
clean and well cared for. The child confirmed that she knows the
applicant as her uncle but she did not understand the meaning of
‘ adoption’
30. This is a ‘ kinship adoption’ as defined by Section 2 of the Act. The
child will remain with the same family and will continue to have regular
contact with her blood relatives.
31. I have perused the report prepared by the Guardian Ad litem the
Adoption Agency and the Director children’s services. All three reports
were positive and all recommend the adoption.
32. I am satisfied that this adoption does serve the best interest of the
subject child. Accordingly I allow the application and hereby make the
following orders;-
“1. The Applicant DANIEL NDUNGU GITHAHI is
authorized to adopt the child known as JANELLE
WANGARI.
2. Upon adoption the child will be known as JANELLE
WANGARI.
3. CATHERINE WANGARI GITAHI is appointed as the
legal guardian for the child.
The Registrar-General is directed to make the relevant
entry in the Adopted children’s Register.
5. No order on costs.
Dated in Nyeri this 25 th day of July 2025
……………………………………….