1. Before the court is the Originating Summons dated 16th April 2024 by which the Applicant is seeking the following orders: -
1. Spent
2. That ELIZABETH JAEL ACHIENG MANGO SCHOENENBERGER be allowed and granted permission by this Honourable Court to adopt the Minor herein.
3. That THOMAS JOSEPH ODHIAMBO MANGO of ID No. 23002481 and PERIS CHEPKOGEI BARMASAI of ID. No. 23733814 resident of Ruai, Nairobi in the Republic of Kenya be appointed as the Legal Guardians.
4. That this Honourable Court be pleased to order that the said adoption be entered in the Adoption Register.
5. That there be no orders as to costs.
2. The application was supported by the statement of the Applicant herein of even date. The application was canvassed by way of viva voce evidence on the virtual platform on 4th July 2024.
3. The Applicant, ELIZABETH JAEL ACHIENG MANGO SCHOENENBERGER is a Kenyan female adult born on 15th October 1981 and is at the time of this application aged 42 years old as evidenced by a copy of the Applicant’s Kenyan Identity Card.
4. The Applicant is since 2015 married to one BERND JOERG STEFAN SCHOENENBERGER, German national. The Applicant told court that as at the date of this application, the couple did not have any biological child of their own.
5. The Applicant’s husband, Mr. BERND JOERG STEFAN SCHOENENBERGER on 16th April 2023 swore affidavit in support of the application for adoption and has undertaken to accept and treat the minor as his child as well and accord him all rights due to a child, including that of inheritance.
6. The Applicant testified that her main motivation for this adoption application is the desire to have children and also to provide for the minor, the child having been found abandoned.
7. The Applicant confirmed to court that she understands the legal implications of an adoption order. The applicant undertakes to accord to the subject child all rights due to a biological child, including the minor’s right to inheritance.
ANALYSIS AND DETERMINATION
8. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022. I will first examine whether the child eligible and free for adoption. Thereafter, I will proceed and examine the suitability of the Applicant before making my final orders in this application.
9. Section 184(1) (a) and (b) of the Children Act 2022 sets the prerequisites which must be met before an adoption order can be made. The section provides as follows: -
“(1)A person shall not commence any arrangements for the adoption of a child unless—
(a) the council, in accordance with the rules, has declared the child free for adoption; and
(b) the child has attained the age of six weeks.”
10. The child who is the subject of the present adoption proceedings is believed to have been born on 17th January 2020. The child was discovered abandoned by the on 24th January 2020 in Majengo area, Nairobi County. He was rescued by good Samaritans who a reported the matter to Sahuri Moyo Police Station on the same date under OB No. 63/24/01/2020.
11. Upon rescue, the child was through the Kamkunji Sub-County Children’s Office, placed at Hope House Babies Home where he was admitted on 24th January 2020 for care and protection for three years.
12. On 11th June 2021, the Principal Magistrate, Children’s Court, Nairobi in Protection and Care Case No. E208/2021, on application by the Nairobi County Director of Children’s Services, committed the child for three years to Hope House Babies Home for care and protection.
13. In the meantime, the police continued with the investigations with a view of establishing the whereabouts of the child’s mother. The police, vide their letter of 12th August 2020 confirmed that efforts to trace the relatives of the baby were fruitless and that the adoption process for the minor could proceed.
14. KKPI Adoption Society, a registered adoption agency in Kenya, enquired from the Hope House Babies Home Administrator and got confirmation from the home that during period the child was at the home, no one had turned up to claim him.
15. On 27th February 2023, the child was placed in the custody of the applicant for mandatory bonding prior to adoption. The Applicant has since been in the continuous custody and care of the child.
16. The KKPI Adoption Agency thereafter sat and deliberated on the applicants’ application and declared the child free for adoption and issued Certificate No. 893 of 27th October 2021 under Section 184(1) (a) of the Children Act declaring the child free for adoption.
17. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) of the Children's Act 2022.
18. As at the date of this application, the subject child was aged four years old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children's Act 2022.
19. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“A child found in Kenya who is or appears to be less than eight years of age and whose nationality and parents are not known is presumed to be a citizen of Kenya "
20. The subject child was abandoned at Shauri Moyo, Nairobi County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicant
21. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is a suitable adoptive parent.
22. The applicant testified that she is currently working in Germany as a nurse. The Applicant further testified that she lives both in Germany and in Kenya. In Kenya, she lives in Mountainview, Nairobi. The Guardian Ad Litem Report in this matter indicated that in Germany, the Applicant lives in a three-bedroom house with a garden in Neckarsulm. That the Applicant has acquired property, both in Kenya and in Germany.
23. Financially, the Applicant testified that she has the means to provide for the child. She annexed copies of her financial statements and land title deed evidencing her income and assets. A report from the Directorate of Children Services dated 19th April 2024 indicated that the applicant has sufficient income to cater for herself and the minor.
24. On review of the evidence on record, I am satisfied that the applicant is generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicant stated that she is a Christian and that she intends to raise the child in the Christian faith.
25. The Applicant was examined by a doctor and were found to be both mentally and physically fit to undertake the adoption. Equally, the applicant has no criminal record and she has annexed to her application, a copy of police clearance certificate from the Directorate of Criminal Investigations evidencing that fact.
26. The applicant informed court that her family is aware of these adoption proceedings and supports the same. That her family has also embraced and bonded well with the minor. The Applicant’s husband, one Bernd Joerg Stefan Schoenenberger, a German national has given his consent and also appeared in court virtually on 4th July 2024 and confirmed the same.
27. The applicant has appointed her brother THOMAS ODHIAMBO MANGO and his wife, PERIS CHEPKOGEI BARMASAI, who is also the Applicant’s sister-in-law to be the legal guardians for the child.
28. The proposed legal guardians have signed their consents in an affidavit dated 16th August 2023 indicating their willingness to be appointed as the legal guardians for the child. On 4th July 2024 both testified and confirmed to court that as a legal guardian to the child, they understand their obligations to the minor.
29. In the premises, I am satisfied that the applicant is a suitable adoptive parent for the minor.
30. Section 8(1) of the Children Act, 2022 directs that in deciding upon any matter involving a child, this court is obliged to give priority to the best interests of the said child. The Section provides: -
“(8). (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) …………”
31. On 4th July 2024, I had the opportunity to see the child virtually in court during the hearing of these proceedings. I could see the child comfortable in the company of the Applicant and it is therefore apparent that the child already settled and feels as part of the Applicant’s family.
32. From the affidavit sworn by the applicant on 16th August 2023 and the accompanying Statement in support of the application of even date, it is clear that the applicant’s intentions are to protect, support, provide inheritance for and maintain the child as his own. That she understands her obligations of an adoptive parent towards the child, including the right to inheritance.
33. I have perused the reports prepared by the adoption agency, the guardian ad litem and the director of children services. All were positive and all recommend the adoption.
34. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, I allow the application and hereby make the following orders: -
I. That ELIZABETH JAEL ACHIENG MANGO SCHOENENBERGER be and is hereby allowed and granted permission to adopt baby ETHAN HOPE HOPE, the Minor herein.
II. That THOMAS JOSEPH ODHIAMBO MANGO of ID No. 23002481 and PERIS CHEPKOGEI BARMASAI of ID. No. 23733814 resident of Ruai, Nairobi in the Republic of Kenya be appointed as the Legal Guardians.
III. That the Registrar General be and is hereby directed to enter this adoption in the Adopted Children’s Register.
IV. That the guardian ad litem is hereby discharged.
35. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
……..for the Applicant
1. Spent
2. That ELIZABETH JAEL ACHIENG MANGO SCHOENENBERGER be allowed and granted permission by this Honourable Court to adopt the Minor herein.
3. That THOMAS JOSEPH ODHIAMBO MANGO of ID No. 23002481 and PERIS CHEPKOGEI BARMASAI of ID. No. 23733814 resident of Ruai, Nairobi in the Republic of Kenya be appointed as the Legal Guardians.
4. That this Honourable Court be pleased to order that the said adoption be entered in the Adoption Register.
5. That there be no orders as to costs.
2. The application was supported by the statement of the Applicant herein of even date. The application was canvassed by way of viva voce evidence on the virtual platform on 4th July 2024.
3. The Applicant, ELIZABETH JAEL ACHIENG MANGO SCHOENENBERGER is a Kenyan female adult born on 15th October 1981 and is at the time of this application aged 42 years old as evidenced by a copy of the Applicant’s Kenyan Identity Card.
4. The Applicant is since 2015 married to one BERND JOERG STEFAN SCHOENENBERGER, German national. The Applicant told court that as at the date of this application, the couple did not have any biological child of their own.
5. The Applicant’s husband, Mr. BERND JOERG STEFAN SCHOENENBERGER on 16th April 2023 swore affidavit in support of the application for adoption and has undertaken to accept and treat the minor as his child as well and accord him all rights due to a child, including that of inheritance.
6. The Applicant testified that her main motivation for this adoption application is the desire to have children and also to provide for the minor, the child having been found abandoned.
7. The Applicant confirmed to court that she understands the legal implications of an adoption order. The applicant undertakes to accord to the subject child all rights due to a biological child, including the minor’s right to inheritance.
ANALYSIS AND DETERMINATION
8. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022. I will first examine whether the child eligible and free for adoption. Thereafter, I will proceed and examine the suitability of the Applicant before making my final orders in this application.
9. Section 184(1) (a) and (b) of the Children Act 2022 sets the prerequisites which must be met before an adoption order can be made. The section provides as follows: -
“(1)A person shall not commence any arrangements for the adoption of a child unless—
(a) the council, in accordance with the rules, has declared the child free for adoption; and
(b) the child has attained the age of six weeks.”
10. The child who is the subject of the present adoption proceedings is believed to have been born on 17th January 2020. The child was discovered abandoned by the on 24th January 2020 in Majengo area, Nairobi County. He was rescued by good Samaritans who a reported the matter to Sahuri Moyo Police Station on the same date under OB No. 63/24/01/2020.
11. Upon rescue, the child was through the Kamkunji Sub-County Children’s Office, placed at Hope House Babies Home where he was admitted on 24th January 2020 for care and protection for three years.
12. On 11th June 2021, the Principal Magistrate, Children’s Court, Nairobi in Protection and Care Case No. E208/2021, on application by the Nairobi County Director of Children’s Services, committed the child for three years to Hope House Babies Home for care and protection.
13. In the meantime, the police continued with the investigations with a view of establishing the whereabouts of the child’s mother. The police, vide their letter of 12th August 2020 confirmed that efforts to trace the relatives of the baby were fruitless and that the adoption process for the minor could proceed.
14. KKPI Adoption Society, a registered adoption agency in Kenya, enquired from the Hope House Babies Home Administrator and got confirmation from the home that during period the child was at the home, no one had turned up to claim him.
15. On 27th February 2023, the child was placed in the custody of the applicant for mandatory bonding prior to adoption. The Applicant has since been in the continuous custody and care of the child.
16. The KKPI Adoption Agency thereafter sat and deliberated on the applicants’ application and declared the child free for adoption and issued Certificate No. 893 of 27th October 2021 under Section 184(1) (a) of the Children Act declaring the child free for adoption.
17. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) of the Children's Act 2022.
18. As at the date of this application, the subject child was aged four years old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children's Act 2022.
19. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“A child found in Kenya who is or appears to be less than eight years of age and whose nationality and parents are not known is presumed to be a citizen of Kenya "
20. The subject child was abandoned at Shauri Moyo, Nairobi County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicant
21. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is a suitable adoptive parent.
22. The applicant testified that she is currently working in Germany as a nurse. The Applicant further testified that she lives both in Germany and in Kenya. In Kenya, she lives in Mountainview, Nairobi. The Guardian Ad Litem Report in this matter indicated that in Germany, the Applicant lives in a three-bedroom house with a garden in Neckarsulm. That the Applicant has acquired property, both in Kenya and in Germany.
23. Financially, the Applicant testified that she has the means to provide for the child. She annexed copies of her financial statements and land title deed evidencing her income and assets. A report from the Directorate of Children Services dated 19th April 2024 indicated that the applicant has sufficient income to cater for herself and the minor.
24. On review of the evidence on record, I am satisfied that the applicant is generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicant stated that she is a Christian and that she intends to raise the child in the Christian faith.
25. The Applicant was examined by a doctor and were found to be both mentally and physically fit to undertake the adoption. Equally, the applicant has no criminal record and she has annexed to her application, a copy of police clearance certificate from the Directorate of Criminal Investigations evidencing that fact.
26. The applicant informed court that her family is aware of these adoption proceedings and supports the same. That her family has also embraced and bonded well with the minor. The Applicant’s husband, one Bernd Joerg Stefan Schoenenberger, a German national has given his consent and also appeared in court virtually on 4th July 2024 and confirmed the same.
27. The applicant has appointed her brother THOMAS ODHIAMBO MANGO and his wife, PERIS CHEPKOGEI BARMASAI, who is also the Applicant’s sister-in-law to be the legal guardians for the child.
28. The proposed legal guardians have signed their consents in an affidavit dated 16th August 2023 indicating their willingness to be appointed as the legal guardians for the child. On 4th July 2024 both testified and confirmed to court that as a legal guardian to the child, they understand their obligations to the minor.
29. In the premises, I am satisfied that the applicant is a suitable adoptive parent for the minor.
30. Section 8(1) of the Children Act, 2022 directs that in deciding upon any matter involving a child, this court is obliged to give priority to the best interests of the said child. The Section provides: -
“(8). (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) …………”
31. On 4th July 2024, I had the opportunity to see the child virtually in court during the hearing of these proceedings. I could see the child comfortable in the company of the Applicant and it is therefore apparent that the child already settled and feels as part of the Applicant’s family.
32. From the affidavit sworn by the applicant on 16th August 2023 and the accompanying Statement in support of the application of even date, it is clear that the applicant’s intentions are to protect, support, provide inheritance for and maintain the child as his own. That she understands her obligations of an adoptive parent towards the child, including the right to inheritance.
33. I have perused the reports prepared by the adoption agency, the guardian ad litem and the director of children services. All were positive and all recommend the adoption.
34. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, I allow the application and hereby make the following orders: -
I. That ELIZABETH JAEL ACHIENG MANGO SCHOENENBERGER be and is hereby allowed and granted permission to adopt baby ETHAN HOPE HOPE, the Minor herein.
II. That THOMAS JOSEPH ODHIAMBO MANGO of ID No. 23002481 and PERIS CHEPKOGEI BARMASAI of ID. No. 23733814 resident of Ruai, Nairobi in the Republic of Kenya be appointed as the Legal Guardians.
III. That the Registrar General be and is hereby directed to enter this adoption in the Adopted Children’s Register.
IV. That the guardian ad litem is hereby discharged.
35. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
……..for the Applicant