I.A.O AND P.M.A VS undefined

1. The Applicants, INNOCENT ABAYO OLUOCH and PERIS MBAIRE ABAYO vide Originating Summons dated 30th November 2022 have made an application for the adoption of BABY JEWEL DHAHABU the child herein. The applicants have been married since 2013 and have attached a copy of the marriage certificate serial number 863922.

2. They wish to adopt the baby with the intention to demonstrate God’s love to mankind by providing a home, love and care to needy child in the community. In addition, they want to expand their family since they are unable to get more children due to medical reasons. The 2nd Applicant also said adoption was something she always wanted to do since her youth and they have been influence by relatives who have adopted children.

3. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 15th of June 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 research officer and 2nd applicant is a Human resource manager, they have had custody of the child since 25th April 2022. They reside in Magiwa Estate Ngumo. They fully understand the consequences of an adoption order.

5. The child was found abandoned at Lunga Lunga Centre, by the mother on 15th May 2021. The child was found by Lucy Njura of Id/No. 10059449 and mobile number 0725738528. She reported the matter at Lunga Lunga Police Station two days after abandonment where it was recorded vide OB/No. 13/17/05/2021.

6. The child was placed under the care and protection of New Life trust home on 18th May 2021 through Makadara Sub-County Children’s Office.

7. On 26 May, 2021 the baby was committed to New Life Home trust, for a period of three years in the Children’s court at Nairobi vide Protection and Care Case No. 231 of 2021.The final police letter dated 9th March 2022, stated that since the child was abandoned no one has claimed her custody.

8. Prior to the hearing of the adoption application, CHANGE TRUST prepared and filed a report dated 21stMay 2021 and issued a certificate serial No. 00448 declaring the child free for adoption. On 20th January 2023 the Court appointed a Guardian Ad litem Lucy Kimaru.

9. The Guardian Ad Litem, Lucy Kimaru was present in Court and presented her report dated 13th March 2023. 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 Child.

10. An officer of the Department of Children Services, Mary Atati prepared a report dated 16th March 2023. The report established that the child was abandoned at Lunga Lunga Centre and was found by Lucy Njura who reported the matter to Lunga Lunga police station under OB NUMBER 13/17/05/2021.

11. The Report further documents that vide letter dated 9th March 2022; the Police confirmed that neither the mother nor other relatives of the child had come back to claim the child. For this reason, the Department of Children Services confirms the child is free for adoption. The Child was placed with the Applicant on 24th April 2022.

12. The proposed Legal Guardians Lawrence Njoroge Runana and Mary Caroline Wambui Mutitu attended court and confirmed they is willing to take up the role of legal guardian.

13. 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.

14.  The Applicants are aged 37 years and 36 years respectively.

15. 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

16. 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;

17.  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 30th November 2022 and order as follows:

i. The Applicants INNOCENT ABAYO OLUOCH and PERIS MBAIRE ABAYO be allowed to adopt Baby JEWEL DHAHABU

ii. The Child to be known as GENO ABAYO

iii. The Child be presumed to be a Kenyan citizen by birth.

iv. LAWRENCE NJOROGE RUNANA and MARY CAROLINE WAMBUI MUTITU 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.