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JudgmentE.K.J.&.M.M VS D.O.C.S6 min read

E.K.J.&.M.M VS D.O.C.S

High Court at Nyeri High Court · · Maureen Odero


ADOPTION CAUSE NO. E007 OF 2022

IN THE MATTER OF ADOPTION OF

ALLISON TENDA FEMALE CHILD alias PRECIOUS FAVOUR KARIUKI (CHILD)

ALLISON TENDA ALIAS PRECIOUS FAVOUR KARIUKI ....THE CHILD

AND

EVANS K. JEREMIAH

LUCY MUTHONI MUNDIA……………………...........……..APPLICANTS

JUDGEMENT

  1. Before this court is the Originating Summons dated 9th June 2022 by which the Applicants EVANS K JEREMIAH and LUCY MUTHONI MUNDIA seek the following orders;-
  2. SPENT
  3. THAT the applicants EVANS K. JEREMIAH AND LUCY MUTHONI MUNDIA be authorized to adopt baby ALLISON TENDA alias PRECIOUS FAVOUR KARIUKI.
  4. THAT the Honourable Court do dispense with the mother’s consent who absconded abandoning the child after delivery at the Kandara, Kiambu County.
  5. The Summons was supported by an Affidavit of even date sworn by the 1st Applicant.
  6. The Applicants are a couple who got married to each other in the year 2005.  To date they have not been blessed with a child.  The couple now wish to adopt the subject child in order to complete their family.
  7. The Applicants both confirmed that they understand the legal implications of an adoption order.  They undertook to accord to the subject child all rights that are due to a biological child including the right to inherit.

ANALYSIS AND DETERMINATION

  1. I have considered this application for adoption, the evidence adduced in support thereof as well as the various reports filed in court.
  2. The Prerequisites for adoption are set out in Section 184 (1) (a) and (b) of the Childrens Act 2022 as follows:-

“(1)  A person shall not commence any arrangement for the

         adoption of a child unless:-

  1. The council, in accordance with the rules, has declared

    the child free for adoption.

  1. The child has attained the age of six weeks.”
  2. The subject child is a girl child who is believed to have been born on or about 18th September 2019.  The child is therefore now aged five (5) years old and is above the six (6) week age limit provided for by law.
  3. BUCKNER KENYA ADOPTION SERVICES, which is a registered adoption agency have annexed to their report a copy of their certificate serial No. 0507 dated 13th November 2020 (Annexture EKJ ‘8’) declaring the child Free for Adoption.  Therefore I am satisfied that the legal prequisites for adoption have been met.
  4. The duty of this court is to analyze the evidence on record to determine whether the Applicants are suitable adoptive parents.  The applicants are both Kenya Citizens who resides in Nyeri County in the Republic of Kenya.  A copy of their National Identity Cards are annexed to this application.

10. The Applicants are a couple who got married to each other on 9th April

2005.  A copy of their Marriage Certificate Serial Number 013169

      appears as Annexture ‘EKJ’1’ to the Summons.

11. The couple have not borne a child of their own hence their desire to

      adopt a child.  They are both Christians and intend to raise the child in

      the Christian Faith.

12. The 1st Applicant is a Pastor and works with the Deliverance church

      whilst the 2nd Applicant runs a business in Nyeri Town.  They have

      annexed copies of their financial records (Annexture EK ‘7’) which

      indicate that they earn sufficient income to provide for the needs of the

      child.

13.  The Applicants have also annexed copy of clearance certificate issued

       to each of them by the Directorate of Criminal Investigations

       confirming that neither has a criminal record (see EKJ 6(a) and EKJ

       6(b).

14.   The Applicants told the court that their extended family are all aware

        of and support their intention to adopt the subject child.

15.   They have appointed one ANNE WAIRIMU GICHUKI to be the legal

        Guardian for the child.  The said legal guardian has signed an Affidavit

        dated 17th August 2024 confirming her willingness to take

        responsibility for the child in the event that the Applicants are unable

        to do so or are unavailable.

16.   Based on the material before this court I am satisfied that the Applicants

       are suitable adoptive parents.

17.  The subject child is believed to have been born on 18th September

2019.  The child was abandoned aged only two (2) months at the

       roadside in Kandara.  A Good Samaritan rescued the baby and took

       her to Kandara level 4 Hospital where she was admitted for

       evaluation.

18.  The abandonment was reported at Kandara Police Station vide OB

NO 27 of 18th November 2019.  On 11th December 2019, the

Nairobi Children’s Court committed the child to New Life Home

       Trust for care and protection.  On 25th November 2020, the child

       was released in the custody of the Applicants under a Foster Care

       Agreement.

19.   Article 14(4) of the Constitution of Kenya 2010 provides that:-

“(4) 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 by Birth.”

20.   The subject child was found abandoned at the age of two (2) months

within Nyeri County in the Republic of Kenya.  Efforts by police to trace the biological mother and/or relatives of the child have born no fruit.  To date no person has come forward to claim the child.  A final police letter dated 28th October 2020 confirms this fact.  I therefore declare the child to be a citizen of Kenya by birth.

21.  Given the fact of her abandonment there exists no known person from

      whom consent for this adoption can be sought and/or obtained.  I do

      waive the requirement for consent in line with

Section 187 (1) (a) Children Act 2022.

22.   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 -

  1. The best interests of the child shall be the priority consideration”  [Own emphasis]   

23. This is a child who was abandoned a few months after her birth. She

      faced an uncertain future living in Children’s Home.  This adoption allows

      the child the opportunity to be raised in a stable and loving home

      environment.

24.  The child has lived with the Applicants for close to four (4) years.  She     

views them as her parents and theirs is the only home the child knows.  I was able to see the child online.  She was a healthy, though somewhat shy young girl.

26.    A Home visit was conducted by the Children’s Department on 5th June

2024.  The Applicants live in a residence along the Othaya -

Mukurweini Road in a three bed-roomed rental house.  The House

         was found to be fitted with all necessary amenities in a secure

         compound suitable for raising a young child.

27.   I have considered the reports prepared by the Adoption Agency, the

Guardian Ad Litem and the Childrens Department.  All three reports were favourable and all recommended the adoption.

28.   Finally I find that this adoption does serve the best interest of the

        subject child.  Accordingly I allow this application and make the

        following orders:-

  1. The Applicants EVANS K JEREMIAH and LUCY

MUTHONI MUNDIA are authorized to adopt the child known as Baby Alison Tenda.

  1. Upon adoption the child will be known as PRECIOUS

    FAVOUR KARIUKI.

  1. The child is declared to be a Kenyan Citizen by birth and

     is entitled to all the rights and privileges pursuant

     thereto.

  1. ANN WAIRIMU GICHUKI is appointed as the legal

     Guardians of the child.

  1. The Registrar - General is directed to make relevant

      entry in the Adopted Children’s Register.

  1.   No orders on costs.

Dated in Nyeri this 20th Day of September, 2024

…………………………………………..


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