JUDGMENT
1. This judgment is part of the rapid results initiative. We were called to hear family adoption matters to ease the burden of waiting. 2. The Applicant testified that he is a Commercial Manager age 43. He is married to Agnes Matuki. He had make an initial application but the wife divorced. I take it that like all other families she was orphaned while the process was ongoing.
3. Though he is a single male applicant, the initial assessment was the applicant with JKO.Unfortunately, divorce occurred through Nairobi Milimani cm divorce cause no. 264 of 214. The minor was left with the Applicant. These are special circumstances for the adoption. The process was ongoing when the divorce occurred.
4. The 2nd wife died during child birth related to the 2nd child. He has now married his current wife NWG. She gave her consent. When Divorce occurred, the process of adoption was incomplete. The child had bonded with the Applicant and the former wife. He was left in custody of the child. She knows no other home.
5. Therefore, dismissing this originating summons will not serve any useful purpose. Article 153 (2) of the Constitution enjoins me in matters concerning a child to have regard to the child’s best interest as they are paramount the article provides as doth: -
(2) A child’s best interests are of paramount importance in every matter concerning the child.
6. Though the applicant is a sole Applicant, he is not a single male. He is married and as such outside the parameter of Section 186 (6) 4 of the Children’s Act. The section provides: -
The Court shall not make an adoption order in favour of an Applicant or joint Applicants if the Applicant or joint Applicants, or any of them—
a) is of unsound mind within the meaning of the Mental Health Act (Cap. 248);
(b) is incapable of exercising proper care and guardianship of a child;
(c) has been convicted by a Court of competent jurisdiction for any of the offences specified in the Third Schedule or similar offences;
(d) in the case of joint Applicants, if the Applicants are not married to each other;
(e) is a sole male Applicant except where the Applicant is a biological relative of the child; or
(f) is a foreign Applicant except where the Applicant is a biological relative of the child.
7. Further he was in a couple applicants till the Divorce took away the other couple. Surely it cannot take away the daughter too. The daughters bonded with the former “adoptive” mother. This had resulted in the current wife calling her a step daughter. In that connection I am satisfied that the application is a proper one.
8. The directorate of Children Services approved the adoption and explained the special circumstances of the case. There was a report by Children Service dated 17/2//2023, Report by guardian ad litem dated 27/2/2023KKPI Adoption report dated 13/7/2022. The applicant also married another wife who passed away on 26/3/2015.
9. He married the current wife Agnes Kamere Maluki in 2018. She has contested to adoption. They are happily married. The minor was born on 3/10/2019. The Applicant has immense resources but no children yet. That is where the minor comes in.
10. At the end the paramountcy of the best interest of the children prevails. I am satisfied from testimony that the applicant is a proper person to adopt the child herein. I therefore allow the application.
Determination
11. The upshot of the foregoing is that I allow the application in the following terms:
(a) Isaac Ototo Nyaihwaya be allowed to adopt baby Apple aka Nancy Wanjiru Mwangi to be renamed Estelle Nyanchera Ototo.
(b) The place of birth be Thika District Hospital on 3/10/2019 as a Kenyan Citizen by birth.
(c) The Guardian ad litem is discharged.
(d) Edna Nyaboke Nyanchwa and Samuel Thuo Muraya be anointed as the legal guardians.
(e) The Registrar General do enter this adoption in the registrar of adoption.
(f) The Director General Immigration to be authorized to issue the passports to the child.
(g) This file be closed and sealed
DELIVERED, DATED and SIGNED at MOMBASA on this 18th day of April 2023. Judgment delivered through Microsoft Teams Online Platform.
In the presence of:
Kimenyi and company advocates for the applicant
Court Assistant - Firdaus