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JudgmentJ.W.K VS undefined6 min read

J.W.K VS undefined

High Court at Nyeri High Court · · Maureen Odero


ADOPTION CAUSE NO. E005 OF 2023

IN THE MATTER OF ADOPTION OF

BABY JAMHURI MALE CHILD ALIAS

BABY JAMHURI NATHAN ALIAS NATHAN JAMHURI ALIAS

UNKNOWN MALE CHILD………………………………………..THE CHILD

AND

JOYCE WANJIRU KARIITHI…………………………………..APPLICANT

JUDGEMENT

  1. Before Court is the Amended Originating Summons dated 11th June, 2024 by which the Applicant JOYCE WANJIRU KARIITHI seeks the following orders:-

“1. SPENT

  2.  SPENT

3.  THAT the Applicant be authorized to adopt BABY JAMHURI

   MALE CHILD ALIAS BABY JAMHURI NATHAN ALIAS NATHAN

   JAMHURI ALIAS UNKNOWN MALE CHILD, to be known as 

    DAVID BAKARI KAREITHI.

4.  THAT the child be presumed a Kenyan Citizen by birth.

  5.  THAT the child’s date of birth be 20th December, 2019 and

            the place of birth be BABA DOGO NAIROBI.

  6.  THAT the Registrar General be directed to enter the adoption

     in the Adopted Children Register.

  7.  THAT the Director Immigration be authorized to issue the

   child with a Kenya passport.

  8.   THAT MICHAEL NDEGWA and BEATRICE NDUTA NGEENE be

appointed the legal guardians of the child in event of the death or incapacity of the Applicants before the child is of age or independent.

  9.  THAT, the court be pleased to make any further orders it

            deems necessary.”

  1. The Summons was supported by the Affidavit of even date sworn by the

Applicant.  The matter proceeded by way of vive voce hearing on the virtual platform.

3.  The Applicant Joyce Wanjiru Kariithi is a single woman who has never

been married and who has no biological children of her own. The Applicant however does have a daughter whom she adopted in the year 2018.

  1. The applicant now seeks to adopt another child in order to expand her

family.  The Applicant confirmed that she understands the legal implications of an adoption order and undertakes to accord to the subject child all rights due to a biological child including the right to inherit.

ANALYSIS AND DETERMINATION

  1.    I have considered this application for adoption, the evidence adduced

   in support thereof as well as the various reports filed in court.

  1. The prerequisites for adoption are set out in Section 184 (1) (a) and (b) of the Childrens Act 2022 as follows:-

“(1)  A person shall not commence any arrangement for

the adoption of a child unless:-

  1. The council, in accordance with the rules, has

declared the child free for adoption.

  1. The child has attained the age of six weeks.”

7.  The subject child is a boy child who is believed to have been born on or

about 20th December, 2019.  The child is therefore now aged four and a half (4½) years old and is above the six (6) week age limit provided for by law.

8.   BUCKNER KENYA ADOPTION SERVICES, which is a registered

adoption agency have annexed to their report a copy of their certificate serial No. 0658 dated 9th November, 2022 declaring the child Free For Adoption.  Therefore I am satisfied that the legal prequisites for adoption have been met.

9.   The duty of this court is to analyze the evidence on record to determine

whether the Applicant is a suitable adoptive parent.  The Applicant is a Kenyan Citizen who resides in Nyeri County in the Republic of Kenya.  A copy of her National Identity Card is annexed to this application (Annexture JWK ‘7’). 

10.   The Applicant is a single woman who has never been married and has no biological children of her own.  However as stated earlier the Applicant has a daughter whom she adopted in the year 2018.  A copy of the child’s Adoption Order dated 14th December 2018 as well as her Birth and Adoption Certificates are annexed to the Summons (Annextures JWK – 8’)

11.   The Applicant is in stable employment as Tax and Financial Consultant

With OIKO CREDIT.  She has annexed copies of her financial documents (Annexture ‘JWK - ‘9’) as proof that she has the financial means to provide for the child.

12.   The Applicant is a Christian and intends to raise the child in the

Christian faith. She has annexed her medical records as proof of the fact that she is physically and mentally stable (Annexture ‘JWK 10’)

13.   The Applicant has also annexed a copy of a clearance certificate issued

to her by the Directorate of Criminal Investigations (Annexture ‘JWK11”) confirming that she has no criminal record.

14.  The Applicant told the court that her family are aware of and support

       her intention to adopt the child.  She has appointed legal Guardians in

       the event she is unable or unavailable to care for the child.  The

       proposed Legal Guardians Michael Ndegwa and Beatrice Nduta

Ndegwa have both signed the letter of consent dated 22nd November

2020 confirming their willingness to be appointed as the legal guardians

      for the child.  (Annexture ‘JWK 13’)

15.  Based on the material presented before this court, I am satisfied that

       the Applicant is a suitable adoptive parent.

16.  The subject child is believed to have been born on 20th December,

       2019.  The child was found abandoned at the age of approximately

two (2) weeks old in Mugure Estate, Baba Dogo area of Nairobi

       County.  A Good Samaritan rescued the baby and reported the

       abandonment at Ruaraka Police Station vide OB Number 46 of

30th December, 2019.

17.  The child was then admitted at Happy life Childrens Home.     

       Thereafter on 5th February, 2020 the Nairobi Childrens Court

       committed the child to the same home as a child in need of care and

       protection.

18.  On 14th December, 2022 the child was released into the custody of

       the Applicant under a Foster Care Agreement.

19.  Article 14 (4) of the Constitution of Kenya 2010 provides that:-

“(4) 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 by Birth.”

20.  The subject child was found abandoned at the age of two (2) weeks

       within Nairobi County in the Republic of Kenya.  Efforts by police

       to trace the  biological mother and/or relatives of the child have borne

       no fruit.  To date no person has come forward to claim the child.  A

       final police letter dated 30th December 2019 (Annexture JWK 1)

       confirms this fact.  I therefore declare the child to be a citizen of

        Kenya by birth.

21.  Given the fact of his abandonment there exists no known person from

       whom consent for this adoption can be sought and/or obtained.  In the

       circumstances, I do waive the requirement for consent in line with

Section 187 (1) (a) Children Act 2022.

22.  In deciding upon any matter involving a child, courts are obliged to give

      priority to the ‘best interests’ of the said child.  Section 8 (1) of the

Children Act 2022 provides that:-

“(8). (1) In all actions concerning children, whether

          undertaken by public or private social welfare

          institutions, courts of law, administrative authorities or

          legislative bodies –

  1. The best interests of the child shall be the priority consideration”  [Own emphasis]

23.  This is a child who was abandoned barely two weeks after his birth. He

       faced an uncertain future living in chidlrens Homes/Institutions.  This

       adoption provides the child with the opportunity to be raised in a stable

       and loving home/environment.

24.   The child has lived with the Applicant for close to two (2) years.  He

        has undoubtedly bonded with the Applicant and her daughter. This

        the only family the child knows.  I was able to see the child online.  He

        was a healthy cheerful little boy who confidently answered all questions

        put to him.  The child was obviously at ease sitting next to the

        Applicant.

25.    A Home visit was conducted by the Children’s Department.  The

Applicant lives in a spacious home in Garden Estate in Nyeri County.  The home is within its own compound with a security fence around it and has adequate space and facilities to raise an active growing young boy.  The Applicant has employed a Nanny to assist in caring for the child.

26.  I have considered the reports prepared by the Adoption Agency, the

Guardian Ad Litem and the Director Childrens Services.  All three

      Reports were positive and all recommend the adoption.

27.  Finally I find that this adoption does serve the best interest of the subject

      child.  Accordingly I allow this application and make the following 

      orders:-

  1. The Applicant JOYCE WANJIRU KARIITHI is authorized to adopt the child know as Baby Jamhuri alias Baby Jamhuri Nathan alias Nathan Jamhuri alias Unknown male child.
  2. Upon adoption the child will be known as DAVID BAKARI

KAREITHI.

      (3)    The child is declared to be a Kenyan citizen by birth and is entitled

              to all the rights and privileges pursuant thereto.

  1. MICHAEL NDEGWA GITHINJI and BEATRICE NDUTA

NGEENE are appointed as the legal Guardians of the child.

       (5)    The Registrar – General is directed to make relevant entry in the

              Adopted Childrens Register.

       (6)    No orders on costs.

Dated in Nyeri this 1st Day of August, 2024.


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