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 ABIGAEL NANGILA who is a Kenyan citizen born on the 18th May 2021.
2) THAT upon adoption the Child be known as JEMMIE DELIGHT KERUBO.
3) THAT SARAH NYAKERARIO ONDUKO and NICTOR OBIRI OBURE of Kenya National identity Cards Number 22674496 and 22043164 be appointed as the legal guardian of the child BABY ABIGAEL NANGILA.
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 Applicant. The matter was canvassed by way of Viva Voce evidence on the virtual platform on the 11th May 2023.
3. The applicant is a Kenyan Citizen, residing at Katani in Machakos County and currently a human resource consultant and submits that has the means to cater for the financial and emotional needs of the Child. She has availed her bank statements as evidence of her financial standing. She has no children of her own. She has had custody of the child since 23rd December 2021.
4. GLADYS NYABOKE NYAKARU is the Guardian Ad Litem, having been appointed on16th February 2023.She has prepared and submits report dated 3rd May 2023 which is based on home visits and interviews she undertook. She confirms that the Applicant and the Child have bonded very well and that the Child appears well taken care of. She therefore recommends the adoption.
5. WINFRED IKINYA a representative of the Directorate of Children Services, confirms that her colleague Ezekiel Kimani prepared report dated 20th March 2023 based on home visits and interviews he conducted. The report confirms that the Applicant has satisfied the requisite requirements for adoption as provided for under the Children Act, 2022 and recommends the Adoption.
6. The Court received undated report prepared by Change Trust. The report confirms that the Child was born on 18th May 2021 to Esther Nasambu at Kihara Sub County Hospital. The details of the father are not provided. Birth Notification dated 19th May 2021 issued at Kihara Level 4 Hospital, Kiambaa Serial No BI AC 5971397 is presented before Court. The said Notification of Birth confirms that the mother is Esther Nasambu Sifuma and the Child is Abigael Nangila Biketiy
7. That soon after the Birth of the Child the mother opted to offer the Child for adoption through the Change Trust Society on the 21st May 2021 and the Child was admitted at the New Life Home Trust on the same day.
8. After counselling, the mother signed the Explanatory Memorandum of biological parents on 21st May 2021, thereby relinquishing her parental rights over the child. The reason given for this decision is she had 3 other children and she was unable to fend for this baby given her meagre earnings.
9. The Child was formally committed to New Life Home Trust vide Kiambu Children’s Court Protection and Care Case No. E028 of 2021. On the 27th August the biological mother signed the Legal Form of Social inquiry, thereby confirming that the Child could be offered for adoption. This form is witness by Jane Mburu of ID No. 21792819 who identified herself a s friend to the biological mother, Esther Nasambu.
10. By certificate dated 10th December 2021 Serial Number 00439, the Change Trust declared the Child free for Adoption.
11. Both Sarah NyakerarionOnduko and Nictor Obiri Obure confirmed that they have sworn AFFIDAVIT DATED 6TH December giving their consent to act as Legal Guardian to the Child. Saqrah Nyakerario Onduko is the sister to the Applicant, and Nictor Obirir is her brother in law. The two are married and have 2 children of their own. They understand what being a legal guardian entails and they are committed to performing this role should the need arise.
12. 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 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.
13. The Applicant is aged 50 years having been born on 6th April 2023.
14. 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
15. 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 Applicant is allowed to adopt the Child; BABY ABIGAEL NANGILA.
2) THAT the child be deemed to be a Kenyan citizen born on the 18th May 2021.
3) THAT the Child be known as JEMMIE DELIGHT KERUBO.
4) THAT SARAH NYAKERARIO ONDUKO and NICTOR OBIRI OBURE are appointed as the legal guardian of the child BABY ABIGAEL NANGILA now known as JEMMIE DELIGHT KERUBO.
5) THAT the Registrar be directed to enter this adoption into the Register of Adoptions and a subsequent birth certificate issue by the Registrar of births and Deaths.
6) The Guardian Ad Litem is hereby discharged.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…26th……DAY OF …MAY………..2023.