1. Before the court is the Originating Summons dated 11th June 2024 by which the Applicants seek the following orders: -
i. That the Applicants, JAMES KIILU NZYIMI and ANNASTCIA MUTHEU MUASYA, be allowed to adopt the child currently identified as BABY NATHAN MAHIHU MUGA.
ii. That henceforth, the child be renamed as NATHANIEL MUUO.
iii. The child’s date and place of birth be declared to be 26th May 2014 at Nairobi West Hospital.
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.
v. That JAMES KYALO MWOLOLO and SELINA KAVULA MUTULU be appointed legal guardians of the child, in the event that the Applicants herein are incapacitated or in any way unable to discharge their 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. The relevant department under the Civil Registration Services be directed to issue a post-adoption Certificate of Birth in respect of the child.
ix. That the Directorate of Immigration be directed to issue a passport to the child.
x. That this court do issue such further orders as are in the interest of justice.
2. The application is supported by the Applicants’ statement dated 11th June 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, having celebrated their union on 12th June 2010. The couple’s marriage certificate was attached to the summons as Annex “JK 4”. The union is yet to be blessed with any biological child hence their motivation for this adoption.
4. The Applicants, each confirmed to court at the hearing of this application 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
5. 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
6. The child who is the subject of the present adoption proceedings was born at Nairobi West Hospital on 26th May 2014. As evidenced by a copy of the birth notification serial No. 239319 (Annex “JK 14” to the application), The child’s biological mother is one Marilyne Wangui Karanja. The child’s biological father is unknown.
7. The Child was voluntarily surrendered for adoption on 22nd August 2014 to the Child Welfare Society of Kenya (CWSK), an Adoption Society, by the minor’s biological mother who was then accompanied by the child’s guardian, one Mr. Peter Mahihu Muguongo Karanja, who also the biological mother’s maternal grandfather.
8. The reasons for the surrender of the minor for adoption by the mother are documented in the Child Welfare Society of Kenya report dated 27th June 2023 which was filed in court on 25th July 2024 in support of this application.
9. Both the child’s biological mother and the child’s guardian, one Mr. Peter Mahihu Muguongo Karanja, who also the biological mother’s maternal grandfather on 22nd August 2014 gave their respective consents for the adoption of the child. Copies of the consents together with copies of their respective national identity cards were attached to the application as annexture “JK15A, J15B, JK 15C and JK 15D” in support of this position.
10. Upon the surrender by the biological mother and rescue by CWSK Adoption Society, the child was on 22nd August 2014 placed with CWSK Mama Ngina Kenyatta Children\'s Home before being transferred to Dagoretti Children\'s Centre on 27th August 2014. The referral letter from CWSK to Dagoretti Children’s Centers was attached as annexture “JK 18” to the application.
11. The Children’s Court at Nairobi in the Protection and Care Case No. 53 of 2015, upon application by the Nairobi County Coordinator for Children Services (CCCSN), committed the child to Frances Jones Dagoretti Children\'s Centre for a period of three years. A copy of the committal order issued by the court (Annex “JK 19”) was attached to the summons.
12. The subject child was on 1st September 2015 freed for adoption by the Child Welfare Society of Kenya, the adoption society in this matter and a Certificate No. 1063 accordingly issued declaring the child free for adoption in accordance with section 184(1)(a) of the Children’s Act, 2022.
13. On 9th September 2019, 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.
14. I have carefully reviewed the report dated 27th June 2023 by Child Welfare Society of Kenya 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 biological mother as well as the minor’s guardian on 22nd August 2014 and find the same sufficient in the circumstances of this case.
16. Section 185 (4) of the Children’s Act, 2022 specifies children who shall be available for adoption in the following terms; -
“ (4) The following children shall be eligible for adoption;
(a) a child who is an orphan and has no guardian or caregiver able and willing to take care of the child;
(b) a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year;
(c) children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part.
17. In view of the fact that the subject child was willingly offered by the biological mother in the circumstances specified in the adoption society’s report of 27th June 2023, I am convinced that the child is available for adoption and that the requisite consents have been obtained as per law required.
18. As at the date of this application, the subject child was aged ten (10) years. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
19. Further, in line with section 186 (8) which requires written consents in cases of adoption involving children who have attained the age of ten years, the minor on 26th May 2024 gave his written consent in that regard.
The Applicants
20. 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.
21. The Applicants are Kenyan nationals and are husband and wife. They got married to each other on 12th June 2010 and the union is yet to be blessed with any biological child of their own. In their Statement of Motivation to Adopt dated 13th December 2023 and annexed to the application as exhibit “JK5”, the Applicant’s indicates that their main motivation for this adoption is that they desire to be parents and have a child of their own.
22. Economically, the applicants are both gainfully employed. The 1st Applicant is currently employed an Engineer while the 2nd Applicant is a business lady. According to evidence on record, the Applicants live in a two bedroomed house within Machakos Township with a comfortable environment and suitable for raising the minor.
23. The Applicants testified that they have means to provide for the child. As proof of their financial ability, the Applicants annexed copies of the 1st Applicant’s pay slip (Annex “JK6”) and their bank statements evidencing their income and financial ability.
24. Further, the Gurdian ad litem report dated 22nd July 2024 confirmed that the couple have sufficient net income and assets to cater for the minor and that the child had brought renewed joy and happiness in the family.
25. 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.
26. 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 JK 9A&B) indicating that both have no criminal record.
27. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same. This is also confirmed by the Gurdian ad litem report dated 22nd July 2024 which asserts that the child has been embraced by all in the family, including the 1st Applicant’s grandmother in whose house the minor currently sleeps.
28. The applicants have appointed JAMES KYALO MWOLOLO and SELINA KAVULA MUTULU 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 signed a consent dated 16th May 2021 (Exhibit “JK 10A&B”) indicating their willingness to act as legal guardians for the child.
29. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
30. 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) …………”
31. This was a child who was voluntarily given up and abandoned by his biological mother immediately after birth. He 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.
32. The child has lived with the applicants in their home since 9th September 2015. He has bonded well with the applicants whom he views as his parents. I was able to see the child online. He was a healthy and happy baby boy. He was very much at ease in the company of the applicants.
33. A home visit was conducted by Guardian ad litem reveals that the Applicants are very warm and calm people and that they genuinely love the child and takes good care of the minor in question. That the minor has gelled well, not only with the Applicants but also with the rest of the family, including the nanny and 1st Applicant’s mother with whom the minor also spends some time.
34. I have perused the reports prepared by the adoption agency, the guardian ad litem report 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 subject child. Consequently, allow the application and hereby make the following orders: -
i. That the Applicants herein JAMES KIILU NZYIMI and ANNASTCIA MUTHEU MUASYA, be and are hereby allowed to adopt the child currently identified as BABY NATHAN MAHIHU MUGA.
ii. That upon adoption, the child shall henceforth be renamed as NATHANIEL MUUO.
iii. The child’s date and place of birth be and is hereby declared to be 26th May 2014 at Nairobi West Hospital respectively.
iv. That the child be and is hereby presumed to be a Kenyan Citizen by birth and shall consequently be entitled to all the rights, benefits and privileges accruing therefrom.
v. That the Registrar General be and is hereby directed to make appropriate entries in the Adopted Children’s Register.
vi. The Registrar of Births and Deaths be and is hereby directed to issue a post-adoption Certificate of Birth in respect of the child.
vii. That the Director of Immigration be and is hereby directed to issue a passport to the child.
viii. That JAMES KYALO MWOLOLO and SELINA KAVULA MUTULU be and are hereby appointed legal guardians of the child, in the event that the Applicants herein are incapacitated or in any way unable to discharge their parental obligations.
ix. That the guardian ad litem be and is hereby discharged.
36. 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
Ms. Kimenyi….. for the Applicant
i. That the Applicants, JAMES KIILU NZYIMI and ANNASTCIA MUTHEU MUASYA, be allowed to adopt the child currently identified as BABY NATHAN MAHIHU MUGA.
ii. That henceforth, the child be renamed as NATHANIEL MUUO.
iii. The child’s date and place of birth be declared to be 26th May 2014 at Nairobi West Hospital.
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.
v. That JAMES KYALO MWOLOLO and SELINA KAVULA MUTULU be appointed legal guardians of the child, in the event that the Applicants herein are incapacitated or in any way unable to discharge their 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. The relevant department under the Civil Registration Services be directed to issue a post-adoption Certificate of Birth in respect of the child.
ix. That the Directorate of Immigration be directed to issue a passport to the child.
x. That this court do issue such further orders as are in the interest of justice.
2. The application is supported by the Applicants’ statement dated 11th June 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, having celebrated their union on 12th June 2010. The couple’s marriage certificate was attached to the summons as Annex “JK 4”. The union is yet to be blessed with any biological child hence their motivation for this adoption.
4. The Applicants, each confirmed to court at the hearing of this application 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
5. 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
6. The child who is the subject of the present adoption proceedings was born at Nairobi West Hospital on 26th May 2014. As evidenced by a copy of the birth notification serial No. 239319 (Annex “JK 14” to the application), The child’s biological mother is one Marilyne Wangui Karanja. The child’s biological father is unknown.
7. The Child was voluntarily surrendered for adoption on 22nd August 2014 to the Child Welfare Society of Kenya (CWSK), an Adoption Society, by the minor’s biological mother who was then accompanied by the child’s guardian, one Mr. Peter Mahihu Muguongo Karanja, who also the biological mother’s maternal grandfather.
8. The reasons for the surrender of the minor for adoption by the mother are documented in the Child Welfare Society of Kenya report dated 27th June 2023 which was filed in court on 25th July 2024 in support of this application.
9. Both the child’s biological mother and the child’s guardian, one Mr. Peter Mahihu Muguongo Karanja, who also the biological mother’s maternal grandfather on 22nd August 2014 gave their respective consents for the adoption of the child. Copies of the consents together with copies of their respective national identity cards were attached to the application as annexture “JK15A, J15B, JK 15C and JK 15D” in support of this position.
10. Upon the surrender by the biological mother and rescue by CWSK Adoption Society, the child was on 22nd August 2014 placed with CWSK Mama Ngina Kenyatta Children\'s Home before being transferred to Dagoretti Children\'s Centre on 27th August 2014. The referral letter from CWSK to Dagoretti Children’s Centers was attached as annexture “JK 18” to the application.
11. The Children’s Court at Nairobi in the Protection and Care Case No. 53 of 2015, upon application by the Nairobi County Coordinator for Children Services (CCCSN), committed the child to Frances Jones Dagoretti Children\'s Centre for a period of three years. A copy of the committal order issued by the court (Annex “JK 19”) was attached to the summons.
12. The subject child was on 1st September 2015 freed for adoption by the Child Welfare Society of Kenya, the adoption society in this matter and a Certificate No. 1063 accordingly issued declaring the child free for adoption in accordance with section 184(1)(a) of the Children’s Act, 2022.
13. On 9th September 2019, 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.
14. I have carefully reviewed the report dated 27th June 2023 by Child Welfare Society of Kenya 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 biological mother as well as the minor’s guardian on 22nd August 2014 and find the same sufficient in the circumstances of this case.
16. Section 185 (4) of the Children’s Act, 2022 specifies children who shall be available for adoption in the following terms; -
“ (4) The following children shall be eligible for adoption;
(a) a child who is an orphan and has no guardian or caregiver able and willing to take care of the child;
(b) a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year;
(c) children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part.
17. In view of the fact that the subject child was willingly offered by the biological mother in the circumstances specified in the adoption society’s report of 27th June 2023, I am convinced that the child is available for adoption and that the requisite consents have been obtained as per law required.
18. As at the date of this application, the subject child was aged ten (10) years. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
19. Further, in line with section 186 (8) which requires written consents in cases of adoption involving children who have attained the age of ten years, the minor on 26th May 2024 gave his written consent in that regard.
The Applicants
20. 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.
21. The Applicants are Kenyan nationals and are husband and wife. They got married to each other on 12th June 2010 and the union is yet to be blessed with any biological child of their own. In their Statement of Motivation to Adopt dated 13th December 2023 and annexed to the application as exhibit “JK5”, the Applicant’s indicates that their main motivation for this adoption is that they desire to be parents and have a child of their own.
22. Economically, the applicants are both gainfully employed. The 1st Applicant is currently employed an Engineer while the 2nd Applicant is a business lady. According to evidence on record, the Applicants live in a two bedroomed house within Machakos Township with a comfortable environment and suitable for raising the minor.
23. The Applicants testified that they have means to provide for the child. As proof of their financial ability, the Applicants annexed copies of the 1st Applicant’s pay slip (Annex “JK6”) and their bank statements evidencing their income and financial ability.
24. Further, the Gurdian ad litem report dated 22nd July 2024 confirmed that the couple have sufficient net income and assets to cater for the minor and that the child had brought renewed joy and happiness in the family.
25. 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.
26. 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 JK 9A&B) indicating that both have no criminal record.
27. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same. This is also confirmed by the Gurdian ad litem report dated 22nd July 2024 which asserts that the child has been embraced by all in the family, including the 1st Applicant’s grandmother in whose house the minor currently sleeps.
28. The applicants have appointed JAMES KYALO MWOLOLO and SELINA KAVULA MUTULU 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 signed a consent dated 16th May 2021 (Exhibit “JK 10A&B”) indicating their willingness to act as legal guardians for the child.
29. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
30. 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) …………”
31. This was a child who was voluntarily given up and abandoned by his biological mother immediately after birth. He 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.
32. The child has lived with the applicants in their home since 9th September 2015. He has bonded well with the applicants whom he views as his parents. I was able to see the child online. He was a healthy and happy baby boy. He was very much at ease in the company of the applicants.
33. A home visit was conducted by Guardian ad litem reveals that the Applicants are very warm and calm people and that they genuinely love the child and takes good care of the minor in question. That the minor has gelled well, not only with the Applicants but also with the rest of the family, including the nanny and 1st Applicant’s mother with whom the minor also spends some time.
34. I have perused the reports prepared by the adoption agency, the guardian ad litem report 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 subject child. Consequently, allow the application and hereby make the following orders: -
i. That the Applicants herein JAMES KIILU NZYIMI and ANNASTCIA MUTHEU MUASYA, be and are hereby allowed to adopt the child currently identified as BABY NATHAN MAHIHU MUGA.
ii. That upon adoption, the child shall henceforth be renamed as NATHANIEL MUUO.
iii. The child’s date and place of birth be and is hereby declared to be 26th May 2014 at Nairobi West Hospital respectively.
iv. That the child be and is hereby presumed to be a Kenyan Citizen by birth and shall consequently be entitled to all the rights, benefits and privileges accruing therefrom.
v. That the Registrar General be and is hereby directed to make appropriate entries in the Adopted Children’s Register.
vi. The Registrar of Births and Deaths be and is hereby directed to issue a post-adoption Certificate of Birth in respect of the child.
vii. That the Director of Immigration be and is hereby directed to issue a passport to the child.
viii. That JAMES KYALO MWOLOLO and SELINA KAVULA MUTULU be and are hereby appointed legal guardians of the child, in the event that the Applicants herein are incapacitated or in any way unable to discharge their parental obligations.
ix. That the guardian ad litem be and is hereby discharged.
36. 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
Ms. Kimenyi….. for the Applicant