Introduction
1. The Joint Applicants are a married couple born in 1966 and on 24th December 1977, respectively. They married each other on 18th August 2012 at the World Revival Union, Misajeni. Mr Dickens Chengo Ngade is a businessman, while Ms Eunice Dhahabu Kaingu is a teacher. The couple resides at Kaloleni in Kilifi County. They profess the Christian faith. Their union has not been blessed with any issues. Both applicants are of good conduct and have no criminal records. The child, the subject of the adoption application, was received into their care and protection on 22nd February 2019 and has been with them ever since. The Joint Applicants aren’t related to the child. They haven’t made a previous application for adoption. Mr Chengo and Ms Kaingu propose to call the child Elija Chengo Jembe if the adoption application is successful.
2. The proposed adoptive child is Baby Paul, alias Baby Pauline Wambui. He was abandoned at birth by the birth mother on 10th March 2018 at the Coast General Hospital. The matter was reported at Makupa Police Station vide OB No 50/20/03/2018 on the said date. He was rescued and placed at CWSK Mji wa Salama TPS. Subsequently, he was committed to the said institution under the Tononoka Children’s Court Care and Protection Cause No. 362 of 2018 on 11th October 2018.
3. The efforts to trace the child's mother haven’t borne fruit. No one has come forth to claim the child, even though there have been efforts to do so through media tracing and social investigations. Baby Paul was placed with the proposed adoptive parents on 22nd February 2019, pending the finalization of the adoption process in Court. At the time of the hearing of the instant Court proceedings, the child was with the proposed adoptive parents and was enrolled in Grade 1 at Chang’ombe Primary School.
4. The Child Welfare Society of Kenya assessed the child and the proposed adoptive parents. In a report dated 13th June 2024, they declared the child free for adoption. The certificate declaring the child free for adoption is dated 13th February 2019 and bears serial number 1099.
5. A social enquiry was also conducted by the said agency on the suitability of the proposed adoptive parents. Vide in a report dated 13th June 2024, they recommended that the Court follow the adoption of the child by the proposed adoptive parents.
The Originating Summons dated 12th July 2024
6. The Joint Applicants filed the Originating Summons dated 12th July 2024 vide which they sought the following orders:-
1. That the applicants be authorized to adopt Baby Paul alias Baby Pauline Wambui;
2. That the consent of the biological parents be dispensed with as the child was abandoned;
3. That upon the making of the adoption order, the said child be known as Elija Chengo Jembe;
4. That the Registrar General do make the appropriate entry of Elija Chengo Jembe to be presumed to be a Kenyan citizen born in Kenya and that the Director of Immigration services do issue Elija Chengo Jembe with a Kenyan Passport; and
5. That Claris Nyevu Kaingu be appointed Legal Guardian of the child Elija Chengo Jembe.
The Appointment of the Guardian ad litem
7. The Joint Applicant also filed with the Originating Summons a Chamber Summons application dated 12th July 2024, vide which they sought to have Christine Maere Kolongo appointed as the guardian ad litem in respect of these adoption proceedings and for the Director of Children Services to conduct a social enquiry and to prepare the requisite report.
8. The Chamber Summons applicable was heard on 3rd October 2024. Being satisfied with Ms Christine Maere Kolongo's suitability, the Court appointed her as the guardian ad litem. It directed her and the Director of Children Services, through the Children Department Kilifi, to conduct home visits and prepare and file the requisite reports within 30 days of the said date. Hearing of the Originating Summons was slated for 5th November 2024.
Evidence Adduced by the Witnesses
9. The Originating Summons was heard on 5th November and 5th December 2024. A total of 6 Witnesses testified. I shall set out their respective testimonies below.
10. The first Witness was Dickens Chengo Ngade. The 1st Applicant is a pastor of Glorious Worship Church and a businessman. The 2nd applicant is his wife. Dickens testified that Baby Paul had been with them for over 5 years. He testified that he saw Baby Paul as their firstborn and knew he would inherit their property. He stated that to safeguard the child’s best interest, they had identified a legal guardian, Ms Claris Nyevu Kaingu, so that he could be there for him should anything happen to them.
11. The second Witness was the co-applicant Ms. Eunice Dhahabu Kaingu. She teaches at Chang’ombe Primary School, which is situated at Rabai Sub County. She, too, was aware that adoption is permanent. Ms Kaingu undertook to take care of the child to the best of her ability. She stated that they have sufficient income to take care of him. The 2nd Applicant prayed that the adoption orders be issued.
12. The third Witness was Christine Maere Kolongo. Ms Kolongo is the court-appointed guardian ad litem appointed on 3rd October 2024. She testified that she made two home visits to the Joint Applicant's home at Rabai Mkapini. The Joint Applicants live in their own permanent home which has a compound. She found that the child was happy. He attends the school where the 2nd Applicant teaches. The guardian ad litem recommended that the adoption application be allowed. His recommendation was echoed in her written report dated 30th October 2024, which I have read carefully.
13. Claris Nyevu Kaingu was the 4th Witness. Ms. Claris is the sister of the second applicant. She teaches at Kasidi Secondary School in Rabai and resides in Mazeras. She testified that she had agreed to be a legal guardian of the child. Claris further testified that she was aware of the duties of a legal guardian and was ready and willing to be one. Ms Claris is married with two children. She testified that her husband did not object to her appointment.
14. The fifth Witness was Winifred Kambua Kaluku. Ms. Kaluku is the County Coordinator of Children Services, Kilifi County. She testified that pursuant to the Court orders, she conducted a social enquiry by interviewing the prospective adoptive parents and visiting their homes. Her office found the child had peers he played with, and the Joint Applicants were close. Ms Kaluku recommended the adoption as it would be in the child's best interest.
15. The last Witness was Lilian Kaari Maore. Ms Maore works with the Child Welfare Society of Kenya. She testified that they approved the child for adoption and also assessed the suitability of the adoptive parents. It was her testimony that the Joint Applicants had the means to adopt the child and desired to have him in the medical scheme of the 2nd Applicant. Ms. Maore recommended the adoption.
16. I have considered the application, supporting documents, and the various witnesses' evidence. The issues that emerge for determination are whether the child is available for adoption, if the applicants are fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
17. I have already set out the circumstances under which the child was found. The child was abandoned shortly after birth by the mother, Ms Pauline Wambui. The said birth mother disappeared without a trace. Nobody has come forward to claim him. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. Therefore, the need for consent pursuant to sections 186(8) and 187 of the Children Act 2022 is dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
18. Regarding the baby’s nationality, the evidence adduced shows that he was abandoned shortly after his birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are unknown is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is presumed to be a Kenyan citizen by birth.
19. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.
20. Concerning the Joint Applicants’ suitability, they are Kenyan citizens, aged 58 and 47 years, respectively, at the time of this judgment, which places them within the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. From my records, the Joint Applicants have the means to care for the child they are adopting. They have no criminal records. Since the placement of the minor in their joint custody, the child has fully bonded with them. The Joint Applicants understand the consequences of adoption and know that it is permanent once an adoption order is made.
21. Consequently, I do not doubt that they meet the requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
22. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act, 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.
23. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
24. The child herein was abandoned. He, therefore, needs necessities like food, shelter, education and clothing. He has fully integrated with the Joint Applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
25. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Paul, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Joint Applicants, Dickens Chengo Ngade and Eunice Dhahabu Kaingu are hereby authorised to adopt Baby Paul;
4. Baby Paul shall henceforth be known as Elija Chengo Jembe;
5. I appoint Claris Nyevu Kaingu as the Legal Guardian of Elija Chengo Jembe and entrust her with the responsibility of taking care of the child in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of Elija Chengo Jembe before he attains the age of majority;
6. The Register General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Elija Chengo Jembe as being 10th March 2018 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022.
7. The guardian ad litem, Christine Maere Kolongo, is hereby discharged.
26. I make no orders regarding costs as this is a non-contentious adoption cause.
27. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.
1. The Joint Applicants are a married couple born in 1966 and on 24th December 1977, respectively. They married each other on 18th August 2012 at the World Revival Union, Misajeni. Mr Dickens Chengo Ngade is a businessman, while Ms Eunice Dhahabu Kaingu is a teacher. The couple resides at Kaloleni in Kilifi County. They profess the Christian faith. Their union has not been blessed with any issues. Both applicants are of good conduct and have no criminal records. The child, the subject of the adoption application, was received into their care and protection on 22nd February 2019 and has been with them ever since. The Joint Applicants aren’t related to the child. They haven’t made a previous application for adoption. Mr Chengo and Ms Kaingu propose to call the child Elija Chengo Jembe if the adoption application is successful.
2. The proposed adoptive child is Baby Paul, alias Baby Pauline Wambui. He was abandoned at birth by the birth mother on 10th March 2018 at the Coast General Hospital. The matter was reported at Makupa Police Station vide OB No 50/20/03/2018 on the said date. He was rescued and placed at CWSK Mji wa Salama TPS. Subsequently, he was committed to the said institution under the Tononoka Children’s Court Care and Protection Cause No. 362 of 2018 on 11th October 2018.
3. The efforts to trace the child's mother haven’t borne fruit. No one has come forth to claim the child, even though there have been efforts to do so through media tracing and social investigations. Baby Paul was placed with the proposed adoptive parents on 22nd February 2019, pending the finalization of the adoption process in Court. At the time of the hearing of the instant Court proceedings, the child was with the proposed adoptive parents and was enrolled in Grade 1 at Chang’ombe Primary School.
4. The Child Welfare Society of Kenya assessed the child and the proposed adoptive parents. In a report dated 13th June 2024, they declared the child free for adoption. The certificate declaring the child free for adoption is dated 13th February 2019 and bears serial number 1099.
5. A social enquiry was also conducted by the said agency on the suitability of the proposed adoptive parents. Vide in a report dated 13th June 2024, they recommended that the Court follow the adoption of the child by the proposed adoptive parents.
The Originating Summons dated 12th July 2024
6. The Joint Applicants filed the Originating Summons dated 12th July 2024 vide which they sought the following orders:-
1. That the applicants be authorized to adopt Baby Paul alias Baby Pauline Wambui;
2. That the consent of the biological parents be dispensed with as the child was abandoned;
3. That upon the making of the adoption order, the said child be known as Elija Chengo Jembe;
4. That the Registrar General do make the appropriate entry of Elija Chengo Jembe to be presumed to be a Kenyan citizen born in Kenya and that the Director of Immigration services do issue Elija Chengo Jembe with a Kenyan Passport; and
5. That Claris Nyevu Kaingu be appointed Legal Guardian of the child Elija Chengo Jembe.
The Appointment of the Guardian ad litem
7. The Joint Applicant also filed with the Originating Summons a Chamber Summons application dated 12th July 2024, vide which they sought to have Christine Maere Kolongo appointed as the guardian ad litem in respect of these adoption proceedings and for the Director of Children Services to conduct a social enquiry and to prepare the requisite report.
8. The Chamber Summons applicable was heard on 3rd October 2024. Being satisfied with Ms Christine Maere Kolongo's suitability, the Court appointed her as the guardian ad litem. It directed her and the Director of Children Services, through the Children Department Kilifi, to conduct home visits and prepare and file the requisite reports within 30 days of the said date. Hearing of the Originating Summons was slated for 5th November 2024.
Evidence Adduced by the Witnesses
9. The Originating Summons was heard on 5th November and 5th December 2024. A total of 6 Witnesses testified. I shall set out their respective testimonies below.
10. The first Witness was Dickens Chengo Ngade. The 1st Applicant is a pastor of Glorious Worship Church and a businessman. The 2nd applicant is his wife. Dickens testified that Baby Paul had been with them for over 5 years. He testified that he saw Baby Paul as their firstborn and knew he would inherit their property. He stated that to safeguard the child’s best interest, they had identified a legal guardian, Ms Claris Nyevu Kaingu, so that he could be there for him should anything happen to them.
11. The second Witness was the co-applicant Ms. Eunice Dhahabu Kaingu. She teaches at Chang’ombe Primary School, which is situated at Rabai Sub County. She, too, was aware that adoption is permanent. Ms Kaingu undertook to take care of the child to the best of her ability. She stated that they have sufficient income to take care of him. The 2nd Applicant prayed that the adoption orders be issued.
12. The third Witness was Christine Maere Kolongo. Ms Kolongo is the court-appointed guardian ad litem appointed on 3rd October 2024. She testified that she made two home visits to the Joint Applicant's home at Rabai Mkapini. The Joint Applicants live in their own permanent home which has a compound. She found that the child was happy. He attends the school where the 2nd Applicant teaches. The guardian ad litem recommended that the adoption application be allowed. His recommendation was echoed in her written report dated 30th October 2024, which I have read carefully.
13. Claris Nyevu Kaingu was the 4th Witness. Ms. Claris is the sister of the second applicant. She teaches at Kasidi Secondary School in Rabai and resides in Mazeras. She testified that she had agreed to be a legal guardian of the child. Claris further testified that she was aware of the duties of a legal guardian and was ready and willing to be one. Ms Claris is married with two children. She testified that her husband did not object to her appointment.
14. The fifth Witness was Winifred Kambua Kaluku. Ms. Kaluku is the County Coordinator of Children Services, Kilifi County. She testified that pursuant to the Court orders, she conducted a social enquiry by interviewing the prospective adoptive parents and visiting their homes. Her office found the child had peers he played with, and the Joint Applicants were close. Ms Kaluku recommended the adoption as it would be in the child's best interest.
15. The last Witness was Lilian Kaari Maore. Ms Maore works with the Child Welfare Society of Kenya. She testified that they approved the child for adoption and also assessed the suitability of the adoptive parents. It was her testimony that the Joint Applicants had the means to adopt the child and desired to have him in the medical scheme of the 2nd Applicant. Ms. Maore recommended the adoption.
16. I have considered the application, supporting documents, and the various witnesses' evidence. The issues that emerge for determination are whether the child is available for adoption, if the applicants are fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
17. I have already set out the circumstances under which the child was found. The child was abandoned shortly after birth by the mother, Ms Pauline Wambui. The said birth mother disappeared without a trace. Nobody has come forward to claim him. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. Therefore, the need for consent pursuant to sections 186(8) and 187 of the Children Act 2022 is dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
18. Regarding the baby’s nationality, the evidence adduced shows that he was abandoned shortly after his birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are unknown is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is presumed to be a Kenyan citizen by birth.
19. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.
20. Concerning the Joint Applicants’ suitability, they are Kenyan citizens, aged 58 and 47 years, respectively, at the time of this judgment, which places them within the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. From my records, the Joint Applicants have the means to care for the child they are adopting. They have no criminal records. Since the placement of the minor in their joint custody, the child has fully bonded with them. The Joint Applicants understand the consequences of adoption and know that it is permanent once an adoption order is made.
21. Consequently, I do not doubt that they meet the requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
22. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act, 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.
23. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
24. The child herein was abandoned. He, therefore, needs necessities like food, shelter, education and clothing. He has fully integrated with the Joint Applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
25. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Paul, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Joint Applicants, Dickens Chengo Ngade and Eunice Dhahabu Kaingu are hereby authorised to adopt Baby Paul;
4. Baby Paul shall henceforth be known as Elija Chengo Jembe;
5. I appoint Claris Nyevu Kaingu as the Legal Guardian of Elija Chengo Jembe and entrust her with the responsibility of taking care of the child in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of Elija Chengo Jembe before he attains the age of majority;
6. The Register General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Elija Chengo Jembe as being 10th March 2018 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022.
7. The guardian ad litem, Christine Maere Kolongo, is hereby discharged.
26. I make no orders regarding costs as this is a non-contentious adoption cause.
27. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.