In the Estate of JACKSON KIARIE MIRURU

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI LAW COURTS–FAMILY DIVISION

ADOPTION CAUSE NO. E094 OF 2024

in the matter of children act, 2022

and

IN THE MATTER OF THE ADOPTION OF BABY CLARE NJOKI (THE CHILD) BY

PAUL KAGUNDU NJUGUNA………………………………………...………1^ST APPLICANT

OLIVE WAMBUI KAGUNDU…………………………….………….……….2^ND APPLICANT

JUDGMENT

1. Before the court is the Originating Summons dated 12^th April 2024 by which the applicants seek the following orders: -
2. That the applicants be authorized to adopt, CLARE NJOKI, a minor who is to be known as CLARE NJOKI and the Registrar General be directed to enter this adoption into the Register of Adoptions.
3. That JANE WAMGUI GITONGA be appointed legal guardian of the minor
4. The child be indicated to have been born in Kenya.
5. The application was supported by statement and affidavit of even date sworn by the applicants and was canvassed by way of viva voce evidence on the virtual platform on 27.07.2024.
6. This is a kinship adoption proceeding in line with section 193 of the Children Act, 2022. The subject child is a niece to the 1^st Applicant, who is the husband to the 2^nd Applicant herein.
7. The applicants are husband and wife. They got married to each other in the year 2007 in the United States of America (USA). The marriage has been blessed with three biological children.
8. The Applicants testified that their main motivation for this application is the desire to provide the child, the child’s biological father having died in 2015 as a result of a road traffic accident as shown by the death Certificate annexed to the affidavit in support of the application.
9. The applicants now wish to adopt the subject child in order to expand their family and to extend more benefits to the child by among others, having the child join them in USA. The applicants state that this will accord the child extensive opportunities for growth and development.
10. The Applicants each confirm to the court that they do understand the legal implications of an adoption order. The applicants both undertake to accord to the subject child all rights due to a biological child, including the child’s right to inheritance.

ANALYSIS AND DETERMINATION

1. 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—

1. the council, in accordance with the rules, has declared the child free for adoption; and
2. the child has attained the age of six weeks.”
3. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022.
4. I will first examine whether the child eligible and free for adoption. I will thereafter examine the suitability of the Applicants before making my final orders.
5. The child who is the subject of the present adoption proceedings is now nine (9) years having been born on 22^nd February 2015. The child is the 3^rd born to Agnes Wanjiru, who is the 1^st Applicant’s sister and her later husband, Obadia Ndungu Njuguna who died on 17^th August 2015 through a road traffic accident.
6. The child’s biological mother, Ms. Agnes Wanjiru is still alive and currently lives with the child together with her two siblings in Kenol, Muranga County. The subject child a pupil and currently in Grade four (4).
7. In line with Section 186 (8) (a) of the Children Act, 2022, the child’s biological mother has given her consent to these adoption proceedings. The same is dated 9^th February 2024 and annexed to the Summons. I have established that the minor is below the age of ten (10) years and therefore her biological parent’s consent is sufficient.
8. It is clear from the above that as at the date of this application, the subject child is nine (9) years and therefore meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children Act 2022.
9. Kenyan to Kenyan Peace Initiative (KKPI), an adoption Society in Kenya, sat and deliberated on the applicants’ application and they declared the child free for adoption on 27^th March 2024. The Society signed and issued Certificate No. 906 of 28^th February 2024 declaring the child free for adoption.
10. Having established that the subject child is free for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicants are suitable adoptive parents.
11. The applicants are both Kenyan citizens as evidenced by the copies of their national identity cards which are annexed to the summons. They are a couple who solemnized their union in the USA on 22^nd February 2007. A copy of their marriage certificate serial number 032006 is annexed to the summons. The couple have three other biological children.
12. The applicants are both gainfully employed. the 1^st applicant works as Public Safety and Correctional Officer, in Baltimore, USA whilst the 2^nd applicant is a nurse in Howard County, USA. According to evidence on record, the Applicants own a home in which they live together with their three biological children and have means to provide for the child. They have annexed copies of their financial statements evidencing their income.
13. On review of the evidence on record, I am satisfied that the applicants are financially secure an are capable of providing or the needs of the child.
14. The Applicants were both examined by a doctor and were found to be both mentally and physically fit. They have equally annexed a copy of police clearance certificate, dated 30^th August 2023 from the State of Maryland, Criminal Justice Information System, evidencing no criminal record.
15. The applicants informed the court that their friend and families, both nuclear and extended, are aware of these adoption proceedings and supports the same. That all their three biological children have also embraced and bonded well with the subject child.
16. The applicants have appointed the 1^st Applicant’s sister, one JANE WANGUI GITONGA of 2805 Glavin Way Apartment D Parkville MD 21234, USA as the legal guardian for the child.
17. The proposed legal guardian who is a third born sister to the 1^st Applicant and a sister-in-law to the 2^nd Applicant has signed a consent dated 12^th April 2024 indicating her willingness to be appointed as the legal guardian for the child. She confirmed to court that as a legal guardian to the child, she understands her obligations to him.
18. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
19. 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—

1. the best interests of the child shall be the primary consideration;
2. …………”
3. On 27^th June 2024, I had the opportunity to interview the child virtually in court during the hearing of these proceedings. I found her very enthusiastic to be part of her uncle’s family, be considered a child of the Applicants and join them in the USA for more expanded opportunities for her growth and development.
4. From the affidavit sworn by the applicants on 12^th April 2024 and the accompanying statement, it is clear that the applicant’s intentions are to protect, support, provide inheritance for and maintain the child as his own. He understands the obligations of an adoptive parent towards the child, including the right to inheritance.
5. 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.
6. 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: -
7. That the 1^st and 2^nd Applicants be and are hereby authorized to adopt, CLARE NJOKI, a minor.
8. That upon adoption, the minor shall henceforth be known as CLARE NJOKI.
9. That JANE WANGUI GITONGA be and is hereby appointed legal guardian of the minor.
10. The Registrar General is hereby directed to make an entry of this adoption in the Adopted Children’s Register to reflect the adoption of the minor by the Applicants.
11. The child be indicated to have been born in Kenya.
12. The Guardian ad litem is hereby discharged.
13. It is so ordered.

SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 11^TH DAY OF JULY 2024

ADO MOSES

JUDGE

In the presence of:

Moses Court Assistant

Mr Odunga h/b for Ms. Ambaka for the Applicant