The applicants herein moved this court by way of an originating summons dated 25.6.19 seeking the following orders:-
1. That JNN of P.O Box 16426 -20100 Nakuru be appointed as guardian ad litem of the minors during hearing of these adoption proceedings .
2. That the director Children Services in the Ministry of Home affairs be directed to conduct investigations as to the suitability of the applicants to adopt minors AN & SN and submit on his findings to court .
3. The consent of the Biological father of the minors be dispensed with since the said person is unknown to the children and has never appeared to claim parental rights thereto .
4. That JNN & JNN be authourised to adopt the minors A.N & S.N and the minor be called A.N & S.N.
5. That the registrar general do make appropriate entries in the adopted children’s register in respect of A.N & S.N .
6. Any other orders that that the court may deem fit in the best interest of the children.
7. Costs be in the cause.
Prayers 1 , 2 and 3 were granted on 3.2.20. prayers 4- 7 remain for determination herein.
The Application is supported by the joint statement of the two applicants herein.
The Applicants are a couple and grand parents to the subjects herein born on 31.8.2001 and 11.2.201 respectively as per their birth certificates (Exb no. 1 )and the biological Parents to R. A. W the mother to the children herein who is of merger means .The applicants told this court the mother to the children has given them her consent and this is confirm by her affidavit dated 2.2.24 filed with the list of documents dated 5.2.24 . Also that the whereabouts of the biological father of the minors is unknown and that they have been the ones supporting the said subjects who were in form 3 and class 4 at the time of making the said statement as per Exh no.2 . They further stated that they are Christians and the children also profess christian faith and that they have no intention of taking the children out of the county before they attain the age of majority. They said they are emotionally and physically fit to adopt the minors and educate them upto university level . They confirmed that they were making the application in the best interest of the children .
The Children were availed on court on 3.7.23 and were interviewed by this court and they said they had no objection being adopted by their grand parents who are the applicants herein .
ANALYSIS AND DETERMINATION
I have considered the summons before me the evidence on record as well as the various requisite reports filed herein . The Children Act 2001 under which these proceedings were filed was repealed by the Children Act 2022 which came into force on 27.7.22. Regulation 6. (1) of the 7th schedule (Transitional provisions) Provides ; ‘’ Subject to this Schedule, legal proceedings pending immediately before the coming into force of this Act before a court of competent jurisdiction, including proceedings against or by the State, shall not be affected by the coming into force of this Act, and may be continued. ‘’It is thus clear that proceedings commenced under the repealed Act which were pending as at 26.7.22 shall continue under the new Act. The applicants have shown that they are the grand parents of the subjects herein and this is thus a case of Kinship adoption under section 193 (1) of the Children Act 2022 .
The Subject children herein were born in the years 2001 and 2010 and are thus 23 and 14 years old as at today. The children are above the statutory age of 6 weeks under Section 184 (1) (b) of the Act. They were declared free for adoption By the Nakuru county Children Coordinator vide their report dated 20.10.21 filed in court on 1.11.21 .
The children were declared free for adoption in January 2019 as per the KKPI adoption society report filed herein. The children were also examined by this court and they expressed their wishes to be adopted by the applicants herein . The mother to the children Miss Ruth Antonette Wanjiku Ngaruiya gave her consent to the said adoption vide her affidavit dated 2.2.2024 . She is a single mother.
Sarah Wangui Ngaruiya swore the affidavit dated 22.9.21 filed herein on 12.10.21 in which she agreed to be the legal Guardian of the subjects herein whom she said are her nieces and that the applicants are her parents . She said she consented to being the legal guardian to the subjects and that she understood the application herein for adoption .
On whether the applicants are fit to adopt the children herein . They are both citizens of Kenya as evidence by their national identity cards no .7119500 and 0235776. Indicating that they are 62 and 67 years old respectively. The 2nd applicant is thus the statutory legal age adoption. This case was filed in 2019. It is clear that the 2nd applicant is aged 67 which is above the statutory requirement of Section 184 (1) of the Children Act.. The 2nd applicant is a grandfather to the children and so within the exception under Section 184 (3) of the Act .
It has emerged that the applicants are a married couple with a Christian background and 2nd applicant works for gain in the United States of America and he supports the children who are under the care of the 1st applicant.
The 2nd applicant’s address in the United States of America is 6 Colbert Avenue APT 8 MAYNARD -MA 01754 and social security number is
The 2nd applicant has deponed that he earns a monthly salary equivalent to Khs1,2000/= , per month and hence he is able to fully provide for the needs of the children. The applicants told the court that they have no interest adverse to that of the children and have lived with the children since their birth and have been providing their basic need and have bonded with them . In the case of In re J.N.A. [2018] eKLR it was held that:-“The indefinite moratorium issued by the Kenyan cabinet on 27th November, 2014 involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenya applicants, even those living abroad. Dual citizenship in our country is anchored in Article 16 of the Kenyan Constitution. According to the Guidelines for Alternative Family Care of Children in Kenya page 153,“kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child.\"Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoptions. This is therefore considered to be a local adoption.’’ Though the 2nd applicant is staying and working in the United states of America he and the 1st applicant are Kenyan citizens and the therefore this is a domestic adoption under the children Act 2022 .
In the upshot , the applicants being the grand parents of the subjects herein are fit to adopt the children herein in their best interest . They will no doubt provide the children with privileged education and upbringing within the warmth of the extended family .
I allow the originating summons and I make the following orders in the best interest of the subjects herein :
a. That JNN & JNN be and is hereby authorised to adopt the minors A.N & S.N and the minors will remain by the names A.N & S.N.
b. That the registrar general do make appropriate entries in the adoption children’s register in respect of A.N & S.N in respect of (a) above .
d. That SWN is appointed as legal guardian of the said A.N & S.N .
e. That JNN is hereby discharged as ad litem guardians of the subjects herein .
f. costs in the cause .
DELIVERED IN VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF :
CA : OIGO
APPLICANTS & THEIR COUNSEL : ABSENT