JUDGMENT
1. Before the court is the Originating Summons dated 16th April 2024 by which the Applicant is seeking the following orders: -
i. That the Applicant JANE KINYA MATHIU be allowed to adopt the child currently known as BABY KAYLINE NICOLE.
ii. That heneceforth, the child be renamed as KAYLINE NICOLE MWARI
iii. That the child’s date and place of birth be declared to be 30th April 2015 at Nakuru County.
iv. That the child be presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all rights and benefits in respect thereof.
v. That BETH WANJIRU WANJIKU be appointed as Legal Guardian 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 the appropriate entries in the Adopted Children’s Register.
viii. That this Court do issue such further orders in the interest of justice.
2. The application was supported by statement and affidavit of even date sworn by the Applicant. The Application was canvassed by way of viva voce evidence on the virtual platform on 4th July 2024.
3. The Applicant, JANE KINYA MATHIU is a Kenyan female adult born on 1st January 1978 and is therefore at the time of this application aged 46 years old. A copy of the Applicant’s Kenyan Identity Card was attached at “Page 27” of the application.
4. As at the date of this application, the Applicant was employed as a support staff in a school in Uthiru, Kiambu County and was also engaged, on a part-time basis, in poultry farming within the same county. She is a resident of Kinoo, Kiambu County. As at the date of this application the Applicant was not married and had no biological child of her own.
5. The Applicant testified that her main motivation for this adoption application is the desire to be a mother and also to have a formal opportunity to provide for the minor, the child having been found abandoned on 7th May 2015 in Nakuru, Nakuru County.
6. The Applicant confirmed to court that she understands the legal implication of an adoption order. The applicant undertook to accord to the subject child all rights due to a biological child, including the minor’s right to inheritance.
ANALYSIS AND DETERMINATION
7. The power of this court to make an adoption order is bestowed under section 183 of the Children Act, 2022. In dealing with this application, I will first examine whether the child is eligible and free for adoption. Subsequently, I will then examine the suitability of the Applicant as proposed adoptive parents before making my final orders on the adoption of the subject minor.
8. 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—
(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.”
9. The child who is the subject of the present adoption proceedings is believed to have been born on 30th April 2015. The child was discovered abandoned on 7th May 2015 opposite gate 2 of Rift Valley Provincial Hospital. She was rescued by a good Samaritan who reported the matter to Nakuru Police Station on the same date under OB No. 57/7/5/2015.
10. Upon rescue, the child was taken to Rift Valley Provincial Hospital where he was admitted for a medical check-up. Following instructions from the Nakuru Sub-County Children’s Officer, the child was discharged on 11th May 2015 and placed at the Holy Family Children’s Home for care and protection.
11. On 7th March 2018, pursuant to an application by the Nakuru Sub-County Children’s Officer, the Nakuru Children’s Court in Protection and Care Case No. 196/2018, committed the child to Holy Family Children’s Home for three years for care and protection. The Committal Order was attached at “page 75” of the documents in support of the application.
12. In the meantime, Nakuru Police Sation, vide their letter of 25th April 2018 indicated that they were still investigating the case with a view of establishing the whereabouts of the child’s mother and kindred. The committal order was consequently extended for a further period of three years to enable the police conclude the investigations.
13. On 17th November 2022, the OSC Nakuru Police Sation wrote a final letter, confirming that investigations were complete but their efforts to trace the child’s mother and kindred were futile and that no one had come forward to claim the minor.
14. Further, Little Angels Network Adoption Society, a registered adoption agency in Kenya, made an enquiry from the Holy Family Children’s Home as to whether there was anyone who had turned up to claim the child during the period the minor was placed thereat. The response was in the negative.
15. Additionally, the children’s home stated that no information had been received by them, either from the police or the Department of Children’s Services regarding anyone claiming the minor.
16. Following the confirmation, the Adoption Agency sat and deliberated on the Applicants’ application and declared the child free for adoption on 9th December 2022. The Agency consequently issued Certificate No. 002307 of even date under Section 184(1) (a) of the Children Act, declaring the child free for adoption.
17. On 15th January 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 who is as at the date of this application in Grade 2 at Uthiru Genesis School, the same school where the Applicant works as a support staff.
18. 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) of the Children's Act 2022.
19. As at the date of this application, the subject child was aged nine years one moth old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children's Act 2022.
20. 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 "
21. The subject child was abandoned at birth in Nakuru, Nakuru County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth.
The Applicant
22. 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 a suitable adoptive parent.
23. The Applicant is at the time of this application an employee at a School in Uthiru, Kiambu County and business lady dealing in poultry farming. The Applicant is currently not married and with no biological children of her own.
24. According to evidence on record, the Applicant lives with the child in Kinoo, Kiambu County in a one bedroom rented house and the house is well lit and ventilated with water and electricity. The report from the Director of Children Services concluded that there was nothing within or without the premises that could pose a risk to the child.
25. Financially, the Applicant testified that she has the means to provide for the child. She annexed copies of her financial statements evidencing her income. A report from the Directorate of Children Services dated 4th June 2024 confirmed that the applicant is possessed of sufficient income to cater for herself and the minor.
26. Concerning religion, the applicant deponed that she is a Christian who fellowship at Orthodox Church and that she intends to raise the child in the Christian faith. The Applicant
27. The Applicant was examined by a doctor and was found to be both mentally and physically fit (Page 43-44). Equally, the applicant has no criminal record and has annexed to her application, a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex Page 45) evidencing that fact.
28. The applicant informed court that her family and friends are aware of these adoption proceedings and that they support the same. According to the Applicant, her family and friends have embraced and bonded well with the minor whom they consider one of their own.
29. The applicant appointed her close friend BETH WANJIRU WANJIKU to be the legal Guardian for the child. The proposed legal guardian swore an affidavit dated 26th April 2024 committing her willingness to be appointed as the legal guardian for the child. On 4th July 2024, the proposed legal guardian testified and confirmed to court that as a Legal Guardian to the child, she understands her roles and obligations to the minor.
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 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—
(a) the best interests of the child shall be the primary consideration;
(b) …………”
32. On 4th July 2024 during the hearing of these adoption proceedings, I had the opportunity to see the child virtually in court. I could see the child comfortable in the company of the Applicant and it is therefore apparent that the child already settled as part of the Applicant’s family.
33. From the affidavit sworn by the applicant on 16th April 2024 and the accompanying Statement in support of the application of even date, it is clear that the Applicant’s intention is to have a child of her own and to protect, support and provide for the child as her own. She undoubtedly understands her obligations as an adoptive parent of the child, including the right to inheritance.
34. 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.
35. In the final analysis I am satisfied that this adoption serves the best interest of the minor herein. Consequently, I allow the application and hereby make the following orders: -
i. That the Applicant, JANE KINYA MATHIU be and is hereby allowed to adopt the child currently known as BABY KAYLINE NICOLE.
ii. That upon adoption, the child shall henceforth be known as KAYLINE NICOLE MWARI
iii. That the child’s date of birth be entered as 30th April 2015 and the place of birth be at Nakuru County.
iv. That the child be and is hereby presumed to be a Kenyan Citizen by birth; and consequently, be and is hereby entitled to all rights and benefits in respect thereof.
v. That BETH WANJIRU WANJIKU be and is hereby appointed as Legal Guardian of the child.
vi. That the Registrar General is hereby directed to enter this adoption in the Adopted Children’s Register.
vii. That the guardian ad litem is hereby discharged.
36. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Kimenyi– for the Applicant
1. Before the court is the Originating Summons dated 16th April 2024 by which the Applicant is seeking the following orders: -
i. That the Applicant JANE KINYA MATHIU be allowed to adopt the child currently known as BABY KAYLINE NICOLE.
ii. That heneceforth, the child be renamed as KAYLINE NICOLE MWARI
iii. That the child’s date and place of birth be declared to be 30th April 2015 at Nakuru County.
iv. That the child be presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all rights and benefits in respect thereof.
v. That BETH WANJIRU WANJIKU be appointed as Legal Guardian 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 the appropriate entries in the Adopted Children’s Register.
viii. That this Court do issue such further orders in the interest of justice.
2. The application was supported by statement and affidavit of even date sworn by the Applicant. The Application was canvassed by way of viva voce evidence on the virtual platform on 4th July 2024.
3. The Applicant, JANE KINYA MATHIU is a Kenyan female adult born on 1st January 1978 and is therefore at the time of this application aged 46 years old. A copy of the Applicant’s Kenyan Identity Card was attached at “Page 27” of the application.
4. As at the date of this application, the Applicant was employed as a support staff in a school in Uthiru, Kiambu County and was also engaged, on a part-time basis, in poultry farming within the same county. She is a resident of Kinoo, Kiambu County. As at the date of this application the Applicant was not married and had no biological child of her own.
5. The Applicant testified that her main motivation for this adoption application is the desire to be a mother and also to have a formal opportunity to provide for the minor, the child having been found abandoned on 7th May 2015 in Nakuru, Nakuru County.
6. The Applicant confirmed to court that she understands the legal implication of an adoption order. The applicant undertook to accord to the subject child all rights due to a biological child, including the minor’s right to inheritance.
ANALYSIS AND DETERMINATION
7. The power of this court to make an adoption order is bestowed under section 183 of the Children Act, 2022. In dealing with this application, I will first examine whether the child is eligible and free for adoption. Subsequently, I will then examine the suitability of the Applicant as proposed adoptive parents before making my final orders on the adoption of the subject minor.
8. 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—
(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.”
9. The child who is the subject of the present adoption proceedings is believed to have been born on 30th April 2015. The child was discovered abandoned on 7th May 2015 opposite gate 2 of Rift Valley Provincial Hospital. She was rescued by a good Samaritan who reported the matter to Nakuru Police Station on the same date under OB No. 57/7/5/2015.
10. Upon rescue, the child was taken to Rift Valley Provincial Hospital where he was admitted for a medical check-up. Following instructions from the Nakuru Sub-County Children’s Officer, the child was discharged on 11th May 2015 and placed at the Holy Family Children’s Home for care and protection.
11. On 7th March 2018, pursuant to an application by the Nakuru Sub-County Children’s Officer, the Nakuru Children’s Court in Protection and Care Case No. 196/2018, committed the child to Holy Family Children’s Home for three years for care and protection. The Committal Order was attached at “page 75” of the documents in support of the application.
12. In the meantime, Nakuru Police Sation, vide their letter of 25th April 2018 indicated that they were still investigating the case with a view of establishing the whereabouts of the child’s mother and kindred. The committal order was consequently extended for a further period of three years to enable the police conclude the investigations.
13. On 17th November 2022, the OSC Nakuru Police Sation wrote a final letter, confirming that investigations were complete but their efforts to trace the child’s mother and kindred were futile and that no one had come forward to claim the minor.
14. Further, Little Angels Network Adoption Society, a registered adoption agency in Kenya, made an enquiry from the Holy Family Children’s Home as to whether there was anyone who had turned up to claim the child during the period the minor was placed thereat. The response was in the negative.
15. Additionally, the children’s home stated that no information had been received by them, either from the police or the Department of Children’s Services regarding anyone claiming the minor.
16. Following the confirmation, the Adoption Agency sat and deliberated on the Applicants’ application and declared the child free for adoption on 9th December 2022. The Agency consequently issued Certificate No. 002307 of even date under Section 184(1) (a) of the Children Act, declaring the child free for adoption.
17. On 15th January 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 who is as at the date of this application in Grade 2 at Uthiru Genesis School, the same school where the Applicant works as a support staff.
18. 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) of the Children's Act 2022.
19. As at the date of this application, the subject child was aged nine years one moth old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children's Act 2022.
20. 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 "
21. The subject child was abandoned at birth in Nakuru, Nakuru County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth.
The Applicant
22. 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 a suitable adoptive parent.
23. The Applicant is at the time of this application an employee at a School in Uthiru, Kiambu County and business lady dealing in poultry farming. The Applicant is currently not married and with no biological children of her own.
24. According to evidence on record, the Applicant lives with the child in Kinoo, Kiambu County in a one bedroom rented house and the house is well lit and ventilated with water and electricity. The report from the Director of Children Services concluded that there was nothing within or without the premises that could pose a risk to the child.
25. Financially, the Applicant testified that she has the means to provide for the child. She annexed copies of her financial statements evidencing her income. A report from the Directorate of Children Services dated 4th June 2024 confirmed that the applicant is possessed of sufficient income to cater for herself and the minor.
26. Concerning religion, the applicant deponed that she is a Christian who fellowship at Orthodox Church and that she intends to raise the child in the Christian faith. The Applicant
27. The Applicant was examined by a doctor and was found to be both mentally and physically fit (Page 43-44). Equally, the applicant has no criminal record and has annexed to her application, a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex Page 45) evidencing that fact.
28. The applicant informed court that her family and friends are aware of these adoption proceedings and that they support the same. According to the Applicant, her family and friends have embraced and bonded well with the minor whom they consider one of their own.
29. The applicant appointed her close friend BETH WANJIRU WANJIKU to be the legal Guardian for the child. The proposed legal guardian swore an affidavit dated 26th April 2024 committing her willingness to be appointed as the legal guardian for the child. On 4th July 2024, the proposed legal guardian testified and confirmed to court that as a Legal Guardian to the child, she understands her roles and obligations to the minor.
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 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—
(a) the best interests of the child shall be the primary consideration;
(b) …………”
32. On 4th July 2024 during the hearing of these adoption proceedings, I had the opportunity to see the child virtually in court. I could see the child comfortable in the company of the Applicant and it is therefore apparent that the child already settled as part of the Applicant’s family.
33. From the affidavit sworn by the applicant on 16th April 2024 and the accompanying Statement in support of the application of even date, it is clear that the Applicant’s intention is to have a child of her own and to protect, support and provide for the child as her own. She undoubtedly understands her obligations as an adoptive parent of the child, including the right to inheritance.
34. 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.
35. In the final analysis I am satisfied that this adoption serves the best interest of the minor herein. Consequently, I allow the application and hereby make the following orders: -
i. That the Applicant, JANE KINYA MATHIU be and is hereby allowed to adopt the child currently known as BABY KAYLINE NICOLE.
ii. That upon adoption, the child shall henceforth be known as KAYLINE NICOLE MWARI
iii. That the child’s date of birth be entered as 30th April 2015 and the place of birth be at Nakuru County.
iv. That the child be and is hereby presumed to be a Kenyan Citizen by birth; and consequently, be and is hereby entitled to all rights and benefits in respect thereof.
v. That BETH WANJIRU WANJIKU be and is hereby appointed as Legal Guardian of the child.
vi. That the Registrar General is hereby directed to enter this adoption in the Adopted Children’s Register.
vii. That the guardian ad litem is hereby discharged.
36. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Kimenyi– for the Applicant