E.M.K AND T.N.M VS undefined

1. The Applicants, TIMOTHY NZIOKA MBOYA and ELIZABETH MUENI KIIO vide Originating Summons dated 15th March 2023 have made an application for the adoption of BABY HOSEA WILLIAM the child herein. The applicants have been married since 5th November 2011 and have attached a copy of the marriage certificate serial number 790027.

2. The applicants have always wanted a big family but have been blessed with only one child (Fadhili Mwendwa Nzioka). Separately, they had thoughts of adoption, their love for children and the need to offer a home to a needy child led them to consider adoption whereby the process will give the child permanency. Their biological child also wanted a brother.

3. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 16th of November 2023.

4. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The 1st applicant is a communication consultant and runs a socio- enterprise while the 2nd applicant is a self-employed, they have had custody of the child since 2nd July 2021. They reside in Gikuyu Close-off Ngong Road. They fully understand the consequences of an adoption order.

5. The child is estimated to have been born on 27th September 2019. The child was found abandoned at Kangongo Shamba within Kihara Area by Hannah Njambi of phone number 0721450707 and Mama George. The Good Samaritans Hannah and Mama George reported the matter Kihara Police Post and Karuri Police Station where the matter was recorded in the Occurrence Book Number 14/05/10/2019. Later the child was taken to Kihara Level 4 Hospital for medical examination.

6. In a letter dated 5th October 2019, Karuri Police Station issued a letter and booked on Occurrence Book number 14/05/10/2019.The letter confirmed the abandonment of the child and sought admission for the child at Limuru Children’s Centre as they undertook further investigations.

7. The child was admitted at Limuru Children’s Centre on 5th October 2019. In report dated 18th January 2020, The Sub-County Children Officer Kiambaa wrote a report to the Principal Magistrate Kiambu Children‘s Court, recommending the child to be committed to Limuru Children’s Center for care and protection for a period of two years.

8. On 21st January 2020, the Principal Magistrate Children’s Court Kiambu committed the child to Limuru Children’s Centre vide care and protection number 4 of 2020 for a period of three years. In a final police letter dated 25th January 2021, the Karuri Police Station stated that no claims had been made by the child’s mother or the family.

9. Prior to the hearing of the adoption application, LITTLE ANGELS NETWORK prepared and filed a report dated 3rd March 2021 and issued a certificate serial No. 002172 declaring the child free for adoption. On 27th July 2023. The Court appointed a Guardian Ad litem MONICA WAIRIMU BORO.

10. The Guardian Ad Litem, MONICA WAIRIMU BORO was present in Court and presented her report. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She recommends that the Applicants be allowed to adopt the Baby.

11. The child was present in court. He stated that he is 4 years old, he goes to same school as Fadhili. His teacher is called Ms Alice and his friend is called Mia Ibuka. The Court observed that he appeared jovial and readily recognised the Applicants as ‘Mum’ and ‘Dad’

12. A Representative of the Department of Children Services, EZEKIEL KIMANI attended court and presented a report dated 3rd September 2023 prepared by WINFRED IKINYA and countersigned by NANCY WASWA. The report established that the child is presumed to have been born on 27th September 2019. He was found abandoned at Kangongo shamba in Kihara by a woman, Mama George, who was cutting grass for her animals. The matter was reported by one Hannah Njambi Chichi at Kihara Police Post and was recorded vide OB number 14/05/10/2019. The child who was about a week old was then place at Limuru Children’s Home on 5th October 2020.

13. The Report further documents that upon request by the Sub County Children Officer in Kiambaa via a report dated 18th January 2020, the child was committed to the children’s home by the children’s Court in Kiambu vide protection and care file number 4 of 2020 on 21st January 2020. The child remained at the home unclaimed for more than six months and was therefore declared free for adoption by the Little Angels Network on 5th May 2021 and a certificate serialized as 002172 issued. The child was placed with the applicants on 2nd July 2021 as per the care agreement provide, and has been in their care to date.

14. The proposed Legal Guardians STEPHEN KYALO M MUIA AND ROSE NDILE KYALO attended court and confirmed they are both willing to take up the role of legal guardian.

15. 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 persons 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.

16.  The Applicants are aged 45 years and 53 years respectively.

17. 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

18. This principle is restated 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 Act 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;

19.  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 15th March 2023 and order as follows:

i. The Applicants TIMOTHY NZIOKA MBOYA and ELIZABETH MUENI KIIO be allowed to adopt BABY HOSEA WILLIAM.

ii. The Child to be known as ASHER MUMO NZIOKA.

iii. The Child be presumed to be a Kenyan citizen by birth and date of birth be 27th September 2019 at Kihara

iv. STEPHEN KYALO M MUIA AND ROSE NDILE KYALO are hereby appointed as legal guardians of the Child

v. The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.

vi. The Director of Immigration authorised to issue the child with a Kenyan passport

vii. The Guardian Ad litem is discharged.