1. The Applicant, JANE MUTHONI MWANGI vide Originating Summons dated 27th March 2023 has made an application for the adoption of BABY JOY NATASHA AKA SAUMU IDD the child herein. The applicant is not married. She does not have a child of her own. .She has always wanted to be a mother but was not able as she is single and was also diagnosed with fibroids.
2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 2nd and 16th of November 2023.
3. The Applicant is Kenyan Citizen and of the Christian faith. She avers that she has the financial means and capability to take care of the Child. The applicant is a senior Evaluation Specialist at UNICEF-Bangkok, Thailand. She has had custody of the child since 28th November 2022. She resides in NHC APARTMENTS, KILELESHWA. She fully understands the consequences of an adoption order.
4. The child was abandoned after delivery by her mother Saumu Kalekye at Makindu Sub County Hospital in Makueni County on 29th April 2021.At the time of abandonment, the child was approximately one-day old. The nursing officer in charge at Makindu Sub County Hospital reported the matter at Makindu Police Station on 29th April 2021 and the matter was booked vide OB. NO 37/29/04/2021 for police investigations.
5. The child was committed to A.I.C Kitui Baby Home through the Children’s Court in Makindu under Protection & Care No.31/CCO/E005/2021 on 5th May 2021 through an application by the Children’s Officer Makindu. Upon discharge the hospital referred the case to Child Welfare Society of Kenya (CWSK) on 7th May 2021. CWSK rescued the child on the same day and placed her at A.I.C Kitui Baby Home, a partnering charitable Children Institution for temporary care and protection pending further investigations.
6. The police officers at Makindu Police Station conducted their investigations into the matter. According to their letter dated 16th December 2021, their investigations to trace the child’s mother indicated that ever since the matter was reported at the station no one to claim the abandoned child.
7. CWSK engaged in both social investigations and media tracing with the aim of finding the child’s family and reunifying her with them; thus ensuring family preservation. These efforts included follow up with Makindu Sub County, the area chief at Mbui Nzau Location where the child’s mother alleged to have hailed from and the use of print media.
8. The Makindu Sub County Hospital where the child was abandoned by the mother after delivery confirmed that no relative has claimed the child since the abandonment. The area chief of Mbui Nzau location in Kibwezi Sub County confirmed that he did not know the mother of the child.
9. Further tracing was done through the media in publications in the People Daily February 11, 2022; People Daily March 25, 2022 and People Daily May 27, 2022. Despite these efforts, the child; Joy Natasha alias Saumu Idd has remained unclaimed.
10. Prior to the hearing of the adoption application, CHILD WELFARE SOCIETY OF KENYA prepared and filed a report dated 6th June 2023 and issued a certificate serial No. 1050 declaring the child free for adoption. On 18th May 2023 the Court appointed Guardian ad litem HELLEN NDUTA KIMANI.
11. HELLEN NDUTA KIMANI the Guardian ad litem was present in court, presented her report dated 6th July 2023.She confirmed to the court that she had visited the applicant’s home. The child was well taken care of and the applicant bonded well with the child. She recommends the adoption. The child was present in court. The court observed that the child was too young to communicate.
12. An officer of the Department of Children Services, EZEKIEL KIMANI was presented a report dated 15th November 2023. The report was prepared by CAROLYNE OLILO countersigned by MARY ATATI. The report established that the child was abandoned by her mother who absconded from Makindu Sub County Hospital immediately after birth on 29th April 2021. The matter was reported to Makindu Police Station Child protection Unit vide OB 37/29/04/2021 on the same day. The child was discharged and admitted to CWSK Children’s home on 5th May 2021 vide committal order P&C No.31/CCO/E005/2021.
13. The report further documents that the child was placed with the applicant for the mandatory bonding period prior to adoption on 28th November 2022. Foster care forms duly signed from the home are dated the same day. She has since been under the continuous care and control of the applicant. The applicant was placed with the child in this matter at about the age of about one year old.
14. The proposed Legal Guardian ANDREW KANGETHE MBURU AND PRISCILLA NDUTA KANGETHE attended court and confirmed they are willing to take up the role of legal guardians. They are the applicant’s sister and sister in law.
15. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides. The court may make an adoption order on application by-
(1)(a) Sole applicant; or
(b) Two spouses jointly.
(2)The court shall not make an adoption order in any case unless-
i. the applicant has attained the age of twenty-five years, but is not above the age of sixty-five years; and
ii. The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.
(3)The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.
16. The Applicant is 52 years.
17. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:
A Child’s Best interests are of paramount importance in every matter concerning the child.
18. This principle is restated Under Section 8 of the Children Act , 2022 which provides
Best interests of the child. In all actions concerning children, whether undertaken.
(1)By public or private social welfare institutions, courts of the law, administrative authorities, or legislative bodies-
(a)The best interests of the child shall be the primary consideration;
(b)The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
Section 194 (1) (c) of the Act also requires that if the adoption order is made
The order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;
19. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants.
20. Accordingly, I allow the prayers sought in the Originating Summons dated 27th March 2023 and order as follows:
I. The Applicant JANE MUTHONI MWANGI be allowed to adopt BABY JOY NATASHA AKA SAUMU IDD.
II. The Child is to be known as ZAWADI NYAMBURA MWANGI.
III. The Child be presumed to be a Kenyan citizen by birth and date of birth be on the 29th April 2021 at Makindu
IV. ANDREW KANGETHE MBURU AND PRISCILLA NDUTA KANGETHE are hereby appointed as legal guardians of Child.
V. The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.
VI. The Director Immigration is authorized to issue the child with a Kenyan passport
VII. The Guardian Ad litem is discharged.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…21st ……DAY OF ……November ……..2023.