Introduction
1. Before the court is the Originating Summons dated 7th May 2024 by which the Applicant seeks the following orders: -
i. That the Applicant, JACQUILINE ATHIENO LUMBUGU be allowed to adopt the child currently identified as BABY PHILEMON JEROME
ii. That henceforth, the child be renamed as JEROME BARAKA LUMBUGU
iii. The child’s date and place of birth be declared to be 2nd June 2021 at Ipali Health Centre, Vihiga.
iv. That the child be presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof including issuance of a post adoption Certificate of Birth and a Passport.
v. That BEATRICE AKINYI AMOMBO and ALFRED ODONGO AMOMBO be appointed Legal Guardians of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
vi. That the guardian ad litem be discharged.
vii. That the Registrar General be directed to make appropriate entries in the Adopted Children’s Register.
viii. That this court do issue such further orders as are in the interest of justice.
2. The application is supported by the Applicant’s Statement of 7th May 2024 as well as the Supporting Affidavit of even date sworn by the Applicant. The Application was canvassed by way of viva voce evidence on the virtual platform on 11th July 2024.
3. At the hearing of the Summons, the Applicant testified in support of her application that her main motivation for this application for adoption stems from her love for children and her desire to give back to society by adopting a child.
4. In her statement of 7th May 2024 in support of the application, the Applicant stated that she single and that she has never been married. That she has one biological child, a daughter born in March 1999.
5. The Applicant confirmed to court that she understands the legal implications of an adoption order and therefore undertook to accord to the subject child all rights due to a biological child, including the child’s right to inheritance.
ANALYSIS AND DETERMINATION
6. Section 184(1) (a) and (b) of the Children’s 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—
(a) the council, in accordance with the rules, has declared the child free for adoption; and
(b) the child has attained the age of six weeks.”
Eligibility of the Child
7. The child the subject of the present adoption proceedings was born on 2nd June 2021 at Ipali Heath Centre, Emuhaya, Vihiga County. As evidenced by a copy of the birth notification serial No. 4660093 (Annex “JL 19” to the application), The child’s biological mother is one Marilyne Wangui Karanja while the child’s biological father is Enos Opeywa Omukata.
8. A week to the delivery, the child’s biological mother vide her letter dated 27th May 2021 exhibit “JL 20” chose to give up the minor for adoption on account of the child being a product of an incestuous affair and that she would not be permitted to raise the child within the community. In support of the application, the Applicant attached a copy of a letter dated 28th May 2021 (Annex 21) from the office of the local area Assistant-chief verifying this position.
9. Upon birth, KKPI Adoption Society, a registered society in this case interviewed both the child’s biological mother and father as well as the child’ grandmother on the consequences of adoption. Both biological parents and the child’s maternal grandmother gave their respective consents on 3rd June 2021 for the adoption of the child. Copies of the signed consents together with their respective national identity cards were attached to the summons as annexture “JL 22 - 26” in that regard.
10. Following the surrender of the child for adoption by the biological mother and rescue by KKPI Adoption Society, the child was on 3rd June 2021 referred by the Sub-County Children’s Officer, Luanda, to New Life Home Trust, a children’s Home in Kisumu for care and protection.
11. The court at Vihiga in the Vihiga Principal Magistrate’s Court; Protection and Care Case No. 42 of 2022, upon application by the Vihiga Sub-County Children Officer, committed to the children’s home for a period of three years. A copy of the committal order issued by the court (Annex “JL 31”) was attached to the summons.
12. The subject child was on 19th July 2022 freed for adoption by Change Trust Adoption Society and a Certificate No. 00500 (Annex JL 32-33) of the same date accordingly issued declaring the child free for adoption in accordance with section 184(1)(a) of the Children’s Act, 2022.
13. On 24th March 2023, the child was placed in the custody of the Applicant for mandatory bonding prior to adoption. The Applicant has since been in the continuous custody and care of the child.
14. I have carefully reviewed all the reports in this matter including the one dated 19th July 2022 by Change Trust in its entirety and the reasons advanced thereunder. I am convinced that the best interest of the minor in the circumstances of this case lay in him being offered for adoption.
15. I have also reviewed the consents given by both the minor’s parents, both dated 27th May 2021 as well as the that of minor’s guardian (who is also his grandmother) dated 3rd June 2021 and find the same sufficient in the circumstances of this case.
16. As at the date of this application, the subject child was aged three years old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
17. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“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 of Kenya \"
18. The subject child was abandoned within Ruiru area, Kiambu County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth.
Eligibility of the Applicant
19. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is suitable adoptive parent.
20. The applicant is female adult Kenyan citizen having been born 1977 as evidenced by a copy of her national identity card which was attached as annex “JL4” to the summons. The Applicant who is currently single has never been married and has one biological child, a daughter born in 1999.
21. In support of her application, the Applicant states that for a long time she has harboured the interest of adopting a child in need. A home visit report by the Directorate of Children Services (DCS) reveals that the Applicant is currently employed, working as a Human Resources Specialist at Habitat for Humanity International. The DCS report dated 24th June 2024 concludes that the Applicant is possessed of sufficient resources to take care of herself and the child.
22. At the hearing of the application, the Applicant also testified and confirmed to court that she has sufficient means to provide for the child. In support of this position, she attached as annex (“JL 8A-9”), copies of her pays lip, bank statements and title deeds evidencing her income and properties she currently owns.
23. Further, a pre-placement report dated 18th April 2018 by Little Angels Network (“JL 17”) on the Applicant’s capacity to adopt concluded that the Applicant has sufficient net income and assets to cater for the minor.
24. On review of the evidence on record, I am satisfied that the Applicant is generally financially secure and is capable of providing or the needs of the child.
25. Concerning religion, the applicant deponed that she is a Christian and that she intends to raise the child in the Christian faith.
26. The Applicant informed court that her family and friends are aware of these adoption proceedings and supports the same. In that regard, the Applicant attached recommendation letters from her friend and work colleague as well as one from her mother, Eunice Lumbugu (“JL 12A&B) showing their support for the proposed adoption.
27. Further, the Applicant’s biological daughter in her letter of 12th November 2023 gave her consent for the adoption of the child and also expressed her happiness and satisfaction for the period they have had the minor.
28. The Applicant was examined by a doctor and was found to be mentally and physically fit (Annex “JL 10”) to undertake the adoption. The Applicant equally attached a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex “PM 11”) evidencing that she is of no criminal record.
29. The applicant has appointed BEATRICE AKINYI AMOMBO and ALFRED ODONGO AMOMBO who are the Applicant’s sister and brother-in-law respectively, to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardians have each signed a consent and also sworn affidavit dated 3rd May 2024 (annex “JL14A-D”) indicating their willingness to act as legal guardians for the child.
30. In the premises, I am satisfied that the Applicant is a suitable adoptive parent for the minor.
31. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are 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—
(a) the best interests of the child shall be the primary consideration;
(b) …………”
32. This is a child who was abandoned even before birth. He faced an uncertain future living in a children’s home or even suffering retrogressive cultural practices. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
33. The child has lived with the applicant since 24th March 2023. He has bonded well with the Applicant as well as her daughter whom he views as his parent and sister respectively. I was able to see the child online virtually at the hearing of the application. He is a healthy and happy baby boy and was very much at ease in the company of the Applicant and her daughter.
34. A home visit was conducted by Guardian ad litem and the Directorate of Children Services reveals that the applicant lives in an own spacious three bedroomed house in a gated community within Naivasha Road, Nairobi. That the home is well furnished and offers comfortable environment, well conducive for the child to thrive.
35. I have perused the reports prepared by the Adoption Agencies in this matter; KKPI, Little Angels Network and Change Trust and that of the Guardian ad litem and the Director of Children Services. All were positive and all recommend the adoption.
36. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, allow the application and hereby make the following orders: -
i. That the Applicant herein, JACQUILINE ATHIENO LUMBUGU be and is hereby allowed to adopt the child currently identified as BABY PHILEMON JEROME.
ii. That henceforth, the child be and is hereby renamed as JEROME BARAKA LUMBUGU
iii. The child’s date and place of birth be and is hereby declared to be 2nd June 2021 at Ipali Health Centre, Vihiga.
iv. That the child be and his hereby presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof including issuance of a post adoption Certificate of Birth and a Passport.
ix. That BEATRICE AKINYI AMOMBO and ALFRED ODONGO AMOMBO be and are hereby appointed Legal Guardians of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
x. That the Registrar General be and is hereby directed to make appropriate entries in the Adopted Children’s Register.
xi. That the guardian ad litem be and is hereby discharged.
37. It is so ordered.
Moses Court Assistant
Ms. Kimenyi………. for the Applicant