1. Before the court is the Originating Summons dated 14th May 2024 by which the Applicants seek the following orders: -
i. That the Applicants be authorized to adopt BABY ADAH SHIFRA, a minor who is to be known as NATASHA MUTHONI KARIUKI and the Registrar General be directed to enter this adoption into the Register of Adoptions.
ii. That MARTIN KANYURA and LYDIA WANJA be appointed legal guardians of the child.
iii. That the child be presumed to be born on Machakos County in the Republic of Kenya.
2. The application is supported by the Applicants’ statement dated 14th May 2024 and an Affidavit of even date sworn by the Applicants in support thereof. The Application was canvassed by way of viva voce evidence on the virtual platform on 25th July 2024.
3. The Applicants are Kenyan nationals and are husband and wife. They got married to each other on 17th August 2023. The couple’s marriage certificate was annexed to the summons as “Annex 4” and the marriage is yet to be blessed with any biological child hence their motivation for this adoption.
4. The Applicants testified in court that their main motivation for this application is the desire to expand their family and have a child of their own, as well as to provide for the minor who is an abandoned child.
5. The applicants each confirmed to court at the hearing that they do understand the legal implications of an adoption order. They both undertake to accord to the subject child all rights due to a biological child including the right of 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 who is the subject of the present adoption proceedings is estimated to have been born on 2nd May 2023. The child was abandoned by the mother on 10th May 2023 in a home in Machakos when the mother after being accommodated for the night escaped and disappeared at night leaving the child behind.
8. The child was consequently rescued and a report in that regard was made to Machakos Police Station under OB No. 23/11/5/2023.
9. The matter was therefore escalated to the Machakos Sub-County Children’s Office who on 11th May 2023 had the child committed to Mahali Pa Maisha Children’s Home for care and protection in the Machakos Children’s Court Protection and Care Case No. E019 of 2023.
10. Change Trust Adoption Society, a registered adoption agency in Kenya, sat and deliberated on the Applicants’ application for adoption and declared the child free for adoption vide their report of 23rd November, 2023. The Society signed and issued Certificate No. 00664 of even date, declaring the child free for adoption.
11. On 26th November 2023, the child was placed in the custody of the Applicants for mandatory bonding prior to adoption. The Applicants have since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 16th November 2023 from Machakos Police Station.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged approximately one year old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. 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 \"
16. The subject child was abandoned at birth in Machakos, Machakos County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicants
17. 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 Applicants are suitable adoptive parents.
18. The Applicants are Kenyan Nationals and are husband and wife. They got married to each other on 17th August 2023 and they are yet to have any biological child of their own.
19. The applicants are both gainfully employed. The 1st Applicant is currently based in Dubai where he is working as a healthcare professional. The 2nd Applicant is currently at home mainly taking care of the minor.
20. According to evidence on record, the Applicants currently live in their one bedroomed house in Zambezi, Limuru town. A report from the Directorate of Children Services confirms that the home environment and suitable for raising the minor.
21. The Applicants testified that they have means to provide for the child. As proof of their financial ability, the Applicants annexed copies of their MPESA statements as Annex “21-35” evidencing their income and financial ability.
22. I note that a Social inquiry and Home Study Report dated 5th September 2023 by Change Trust, the adoption agency in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
23. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
24. The Applicants were both examined by a doctor and were found to be both mentally and physically fit. They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations (Annex 36-38) indicating that both have no criminal record.
25. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same.
26. The applicants have appointed MARTIN KANYUIRA and LYDIA WANJA to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardian has signed a consent dated 21st August 2021 (Annex 39) indicating their willingness to act as legal guardians for the child.
27. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
28. 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) …………”
29. This was a child who was abandoned after birth. She faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
30. The child has lived with the applicants in their home since 26th November 2023. She has bonded well with the applicants whom she views as her parents. I was able to see the child online. She was a healthy and happy baby girl. She was very much at ease in the company of the applicants.
31. A home visit was conducted by Guardian ad litem reveals that the Applicants are a happy couple and would definitely take good care of the minor in question. That the minor has fully settled as is well taken care of and that she feels part of the family.
32. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
33. 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 Applicants be and is hereby authorized to adopt BABY ADAH SHIFRA, a minor.
ii. That upon adoption, the child shall henceforth be known as NATASHA MUTHONI KARIUKI.
iii. That the Registrar General is hereby be directed to enter this adoption into the Register of Adoptions.
iv. That MARTIN KANYUIRA and LYDIA WANJA be and are hereby appointed legal guardians of the child.
v. That the child be presumed to be born on Machakos County in the Republic of Kenya.
vi. That the consent of biological parents of the minor be dispensed with since the child was abandoned shortly after birth.
vii. The Guardian ad litem is hereby discharged.
34. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses Court Assistant
Collins h/b for Ms. Kemunto……….. for the Applicant
i. That the Applicants be authorized to adopt BABY ADAH SHIFRA, a minor who is to be known as NATASHA MUTHONI KARIUKI and the Registrar General be directed to enter this adoption into the Register of Adoptions.
ii. That MARTIN KANYURA and LYDIA WANJA be appointed legal guardians of the child.
iii. That the child be presumed to be born on Machakos County in the Republic of Kenya.
2. The application is supported by the Applicants’ statement dated 14th May 2024 and an Affidavit of even date sworn by the Applicants in support thereof. The Application was canvassed by way of viva voce evidence on the virtual platform on 25th July 2024.
3. The Applicants are Kenyan nationals and are husband and wife. They got married to each other on 17th August 2023. The couple’s marriage certificate was annexed to the summons as “Annex 4” and the marriage is yet to be blessed with any biological child hence their motivation for this adoption.
4. The Applicants testified in court that their main motivation for this application is the desire to expand their family and have a child of their own, as well as to provide for the minor who is an abandoned child.
5. The applicants each confirmed to court at the hearing that they do understand the legal implications of an adoption order. They both undertake to accord to the subject child all rights due to a biological child including the right of 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 who is the subject of the present adoption proceedings is estimated to have been born on 2nd May 2023. The child was abandoned by the mother on 10th May 2023 in a home in Machakos when the mother after being accommodated for the night escaped and disappeared at night leaving the child behind.
8. The child was consequently rescued and a report in that regard was made to Machakos Police Station under OB No. 23/11/5/2023.
9. The matter was therefore escalated to the Machakos Sub-County Children’s Office who on 11th May 2023 had the child committed to Mahali Pa Maisha Children’s Home for care and protection in the Machakos Children’s Court Protection and Care Case No. E019 of 2023.
10. Change Trust Adoption Society, a registered adoption agency in Kenya, sat and deliberated on the Applicants’ application for adoption and declared the child free for adoption vide their report of 23rd November, 2023. The Society signed and issued Certificate No. 00664 of even date, declaring the child free for adoption.
11. On 26th November 2023, the child was placed in the custody of the Applicants for mandatory bonding prior to adoption. The Applicants have since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 16th November 2023 from Machakos Police Station.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged approximately one year old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. 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 \"
16. The subject child was abandoned at birth in Machakos, Machakos County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicants
17. 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 Applicants are suitable adoptive parents.
18. The Applicants are Kenyan Nationals and are husband and wife. They got married to each other on 17th August 2023 and they are yet to have any biological child of their own.
19. The applicants are both gainfully employed. The 1st Applicant is currently based in Dubai where he is working as a healthcare professional. The 2nd Applicant is currently at home mainly taking care of the minor.
20. According to evidence on record, the Applicants currently live in their one bedroomed house in Zambezi, Limuru town. A report from the Directorate of Children Services confirms that the home environment and suitable for raising the minor.
21. The Applicants testified that they have means to provide for the child. As proof of their financial ability, the Applicants annexed copies of their MPESA statements as Annex “21-35” evidencing their income and financial ability.
22. I note that a Social inquiry and Home Study Report dated 5th September 2023 by Change Trust, the adoption agency in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
23. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
24. The Applicants were both examined by a doctor and were found to be both mentally and physically fit. They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations (Annex 36-38) indicating that both have no criminal record.
25. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same.
26. The applicants have appointed MARTIN KANYUIRA and LYDIA WANJA to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardian has signed a consent dated 21st August 2021 (Annex 39) indicating their willingness to act as legal guardians for the child.
27. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
28. 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) …………”
29. This was a child who was abandoned after birth. She faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
30. The child has lived with the applicants in their home since 26th November 2023. She has bonded well with the applicants whom she views as her parents. I was able to see the child online. She was a healthy and happy baby girl. She was very much at ease in the company of the applicants.
31. A home visit was conducted by Guardian ad litem reveals that the Applicants are a happy couple and would definitely take good care of the minor in question. That the minor has fully settled as is well taken care of and that she feels part of the family.
32. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
33. 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 Applicants be and is hereby authorized to adopt BABY ADAH SHIFRA, a minor.
ii. That upon adoption, the child shall henceforth be known as NATASHA MUTHONI KARIUKI.
iii. That the Registrar General is hereby be directed to enter this adoption into the Register of Adoptions.
iv. That MARTIN KANYUIRA and LYDIA WANJA be and are hereby appointed legal guardians of the child.
v. That the child be presumed to be born on Machakos County in the Republic of Kenya.
vi. That the consent of biological parents of the minor be dispensed with since the child was abandoned shortly after birth.
vii. The Guardian ad litem is hereby discharged.
34. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses Court Assistant
Collins h/b for Ms. Kemunto……….. for the Applicant