1. This is an Adoption Application. The Application which was by the Applicant JESSICA BENSON, was made by way of an Originating Summons dated 15th August 2025. By it, she has sought to be authorized to adopt LEVI MASESE BENSON, a boy aged 15 years, and who is her nephew.
2. The Application is supported by the Applicant’s Supporting Affidavit sworn on 15th August 2025, and her Statement in Support of the Application; all of even date. It is further supported by Consent to Act as Legal Guardian, sworn on even date, by BRANDON BENSON RORI a close relative. The Application also prays for an order that the Registrar General enter this Adoption in the Register of Adoption. Also for an order that the said BRANDON BENSON RORI be appointed as the Legal Guardian of the Minor.
3. The Application was also accompanied with a List and copies of supporting documents. Relating to the Minor, as well as those relating to Applicant and the Guardian Ad Litem. Including Reports on their fitness and suitability. The requisite Reports, and which are required under the Children Act of 2022 (Cap 141 Laws of Kenya), were filed and are on the court file.
4. The minor was born on 9th June 2010, to a single parent FRANJELYNE KWAMBOKA BENSON a sister to the Applicant; and who died on 13th January 2020. After that death, the Applicant took up the education and upkeep responsibilities, and there is evidence that they have bonded well. She has stated that she seeks this adoption to formalize the relationship.
The Factual Background
The Minor
5. From the totality of facts on record and in the statutory Reports, the Minor is aged 15 years; having been born on 9th June 2010, to one FRANJELYNE KWAMBOKA BENSON (Now deceased), and who was the Applicant’s elder sister. Supposedly, the whereabouts of his biological father are unknown. In his Birth Certificate Serial No. 1818497 (Item No. 16 in the filed List of Documents dated 15th August 2025), the part for his Father’s name is marked XXXXXXXXXXXX. Also in the bundle of documents, is his mother’s Death Certificate Serial No. 1384840 (Item No. 17 at page 60 of the List of Documents).
6. The Minor, who is about to turn 16 years old, and who is currently a High school Student in Form 4, is old enough and intelligent enough to understand the nature of these proceedings. He has himself written a Letter of Consent, expressing a desire to formalize the relationship he has with his Aunt the Applicant, to that of mother and son.
7. He is of good age and mental capacity to understand the nature and purport of these proceedings. At the hearing of this Application, he stated that he has bonded well with his Aunt and is eager to join his new family.
8. The Applicant made an Application to KKPI (Kenyans to Kenyans Peace Initiative) Adoption Society. Seeking to adopt the Minor. At page 63 of the List of Documents (Item No. 19), is a Certificate (Serial No. 0985 dated 30th October 2024) declaring the Minor, free for adoption. Therefore, the Minor has been approved for adoption.
The Applicant
9. The Applicant has stated that she is a single parent with four biological children all living with her, and currently residing in New Jersey, in the United States of America. Their Birth Certificates are No. 2 to 5 on the List of Documents. None of them is above 10 years of age. She has stated that the children have a strong bond with the Minor, and have accepted him as their brother.
10. The Report by the Kisii County Directorate of Children’s Services, and which was presented to the Court by Mr Awino the Director himself, stated that this is a kinship adoption in which the Applicant who is a Kenyan American living in New Jersey USA, and earns the equivalent of approximately Ksh 400,000= per month, is seeking to adopt her nephew LEVI MASESE BENSON; who is a close relative whose mother was her elder sister.
11. He stated that the reason the Applicant gave for her intent to adopt the Minor, is that she has developed a very strong conscious idea of adopting him, ever since his mother’s death. When the child was staying with his maternal grandmother MARY AMANYI MATUNDURA.
12. That the Applicant, who also has a home in Nairobi, has sought and obtained the consent of other family members. That she is an adult of sound mind, with no criminal record; and who has devoted herself to giving her nephew a quality life. She has bonded with him.
13. That in his opinion, the Applicant has met all the legal and social parameters for adopting the subject child, according to the Children Act of 2022. That all the Adoption requirements having been met, the adoption is recommended.
Analysis and Determination
14. There are recommendations from the Guardian Ad Litem and the Adoption Agency. All requisite reports have been filed, and are recommending the adoption. The report by the Children’s Office is on the file. The same is dated 19th December 2025. The prospective adoptive child is the Applicant’s nephew. Hence this is a kinship adoption.
15. On an Application for adoption, the guiding star is the best interests of the child. That should be the paramount consideration, and it is the overriding principle in any child-related matter or proceeding. This principle is in fact, the cornerstone of Kenya’s family law, in matters relating, touching on or concerning children. Section 2 of the Children Act of 2022 has defined it as follows:
“The principle that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution, and Section 8 of the Act”
16. In Re GM aka AW (Child) [2026] eKLR, Nyaundi J observed that this principle not only remains the guiding principle, but that it has also been adopted in Article 53 of the Constitution, in Sections 8 and 194 of the Children Act of 2022, in the UN Convention of the Rights of the Child, as well as the African Charter on the Rights and Welfare of the Child.
17. Besides, the adoption must be voluntary in good faith and free from any illegality or improper motive. Any evidence of foul play, mischief, bad faith or of a criminal intent, will militate against the Application.
18. In determining an adoption Application, a court should consider the following factors:
(1) Bonding between the child and the prospective adoptive parent;
(2) Emotional well-being of the child;
(3) The fitness and suitability of the prospective adoptive parent;
(4) The child’s age and adoptability;
(5) Whether the requisite consents have been obtained;
(6) Where the child is of good age to understand the proceedings, his or her ability to express himself/herself;
(7) The Applicant’s motivation for adoption;
(8) The relationship between the Applicant and the child;
(9) The Report of the adoption society, that of the guardian ad litem; and that of the Children’s office.
19. The Applicant’s suitability and fitness to adopt will include her/his age and legal capacity; her/his character and moral standing; her/his physical and mental health; as well as her/his financial ability to maintain and educate this child.
20. It was held in Re JM (Minor) [2024] KEHC 10589 (KLR), that in adoption matters in Kenya, the applicable law includes Article 53 (2) of the Kenya Constitution and Section 8 (1)-(3) of the Children Act, as well as established common law principles.
21. This is a kinship adoption where the Applicant JESSICA BENSON, a female Kenyan citizen currently residing in the state of New Jersey in the United States of America, has applied to adopt LEVI MASESE BENSON her nephew who is a high school boy aged 15 years.
22. The boy is an orphan currently staying with his maternal grandmother the Applicant’s mother, and whose biological mother, the Late FRANJELYNE KWAMBOKA BENSON who died on 13th January 2020, is the Applicant’s biological sister. The Applicant has provided the Court with the boy’s Birth Certificate and his late mother’s Death Certificate; and stated that the whereabouts of his biological father, are unknown.
23. Where the details of a Minor’s biological are unknown, unavailable or non-existent, paternal consent to adoption may in appropriate cases be waived. For instance, in this case where they are not contained in the Birth Certificate, and his whereabouts are supposedly unknown. In any case, entries in official documents such as a Birth Certificate are conclusive, and may be rebutted only by credible evidence of the contrary.
24. The Kisii County Directorate of Children Services, undertook a due diligence social inquiry and filed its Report in this Court. The Report has in its findings reported as follows:
(1) That the Minor was declared free for adoption;
(2) That all the required procedures were duly followed in handling his care and protection by the prospective adoptive parent the Applicant;
(3) That the Minor was declared free for adoption on 30th October 2024 through Certificate No. 0985 by Kenyan to Kenyan Peace Initiative (KKPI), a Kenyan-based Adoption Agency;
(4) That the Minor has undergone psycho-social therapy;
(5) That the prospective adoptive parent (the Applicant) has bonded well with the Minor, is wholeheartedly devoted to giving him the best of her time and resources;
(6) That she is an adult of sound mind, with no criminal record, and having a good family and social background;
(7) That she has the financial capacity to provide for the Minor’s upkeep and education;
(8) That she has met all the legal and social requirements in adopting the Minor;
(9) Hence that she is fit and suitable to adopt the Minor.
25. When considering the Reports of the Children’s authorities and even those of the adoption agencies, the court has to remind itself that it is not bound by their recommendations. Those Reports are of persuasive effect only, and guided by the best interests of the child, the court has therefore to consider the circumstances of each case, as well as the requirements prescribed in the law (including case law); and arrive at its own decision.
26. This is a kinship adoption Application. Where the Minor and the Applicant are blood relatives with very close family, and already having a close bond. The Minor is a biological son of the Applicant’s biological sister. The Minor’s elder brother NAFTALI BENSON, is supportive of the proposed adoption.
27. Although the Minor is currently under the actual physical custody and supervision of his maternal grandmother MARY AMANYI MATUNDURA, he is already being supported, maintained and cared for by the Applicant his aunt. She has been supporting, maintaining and caring for him since the year 2020 when his mother died.
28. The Applicant is evidently committed to his welfare and well-being; and with a monthly income of approximately Ksh 400,000=, she has the financial capacity to cater for his upkeep and education. She also has mental capacity as well as an acceptable moral and social standing, and is under no notable legal incapacity.
29. This is a kinship adoption. Given that the two are related by blood, the adoption is advantageous. In the sense that there is already an existing family tie; there is also an already existing emotional bond; the Minor’s family identity is preserved; and there will be cultural continuity especially given that both the Applicant and the Minor, are Kenyans of the Kisii tribe.
30. Despite the Applicant’s residence abroad, and the Minor’s possible relocation to there, this fundamentally remains a kinship adoption by a Kenyan citizen adopting her nephew. The fact of residence abroad does not make it an inter-country adoption in the strict sense of the term. Being a term of art.
Final Disposition
31. In the end, I find that this Application has met the legal requirements under Sections 53, 191, 192 and 193 of the Children Act of 2022. I find her to be fit and suitable to adopt the said Minor. I consequently allow her Application, and make the following orders:
(a) The Applicant JESSICA BENSON, is hereby authorised to adopt LEVI MASESE BENSON, a Minor now aged 15 years, and who shall retain the same names.
(b) The Registrar General is hereby ordered to enter this adoption in the Adoption Children Register.
(c) BRANDON BENSON RORI, is hereby appointed as the Minor’s Legal Guardian.
(d) The Guardian Ad Litem is hereby discharged.
2. The Application is supported by the Applicant’s Supporting Affidavit sworn on 15th August 2025, and her Statement in Support of the Application; all of even date. It is further supported by Consent to Act as Legal Guardian, sworn on even date, by BRANDON BENSON RORI a close relative. The Application also prays for an order that the Registrar General enter this Adoption in the Register of Adoption. Also for an order that the said BRANDON BENSON RORI be appointed as the Legal Guardian of the Minor.
3. The Application was also accompanied with a List and copies of supporting documents. Relating to the Minor, as well as those relating to Applicant and the Guardian Ad Litem. Including Reports on their fitness and suitability. The requisite Reports, and which are required under the Children Act of 2022 (Cap 141 Laws of Kenya), were filed and are on the court file.
4. The minor was born on 9th June 2010, to a single parent FRANJELYNE KWAMBOKA BENSON a sister to the Applicant; and who died on 13th January 2020. After that death, the Applicant took up the education and upkeep responsibilities, and there is evidence that they have bonded well. She has stated that she seeks this adoption to formalize the relationship.
The Factual Background
The Minor
5. From the totality of facts on record and in the statutory Reports, the Minor is aged 15 years; having been born on 9th June 2010, to one FRANJELYNE KWAMBOKA BENSON (Now deceased), and who was the Applicant’s elder sister. Supposedly, the whereabouts of his biological father are unknown. In his Birth Certificate Serial No. 1818497 (Item No. 16 in the filed List of Documents dated 15th August 2025), the part for his Father’s name is marked XXXXXXXXXXXX. Also in the bundle of documents, is his mother’s Death Certificate Serial No. 1384840 (Item No. 17 at page 60 of the List of Documents).
6. The Minor, who is about to turn 16 years old, and who is currently a High school Student in Form 4, is old enough and intelligent enough to understand the nature of these proceedings. He has himself written a Letter of Consent, expressing a desire to formalize the relationship he has with his Aunt the Applicant, to that of mother and son.
7. He is of good age and mental capacity to understand the nature and purport of these proceedings. At the hearing of this Application, he stated that he has bonded well with his Aunt and is eager to join his new family.
8. The Applicant made an Application to KKPI (Kenyans to Kenyans Peace Initiative) Adoption Society. Seeking to adopt the Minor. At page 63 of the List of Documents (Item No. 19), is a Certificate (Serial No. 0985 dated 30th October 2024) declaring the Minor, free for adoption. Therefore, the Minor has been approved for adoption.
The Applicant
9. The Applicant has stated that she is a single parent with four biological children all living with her, and currently residing in New Jersey, in the United States of America. Their Birth Certificates are No. 2 to 5 on the List of Documents. None of them is above 10 years of age. She has stated that the children have a strong bond with the Minor, and have accepted him as their brother.
10. The Report by the Kisii County Directorate of Children’s Services, and which was presented to the Court by Mr Awino the Director himself, stated that this is a kinship adoption in which the Applicant who is a Kenyan American living in New Jersey USA, and earns the equivalent of approximately Ksh 400,000= per month, is seeking to adopt her nephew LEVI MASESE BENSON; who is a close relative whose mother was her elder sister.
11. He stated that the reason the Applicant gave for her intent to adopt the Minor, is that she has developed a very strong conscious idea of adopting him, ever since his mother’s death. When the child was staying with his maternal grandmother MARY AMANYI MATUNDURA.
12. That the Applicant, who also has a home in Nairobi, has sought and obtained the consent of other family members. That she is an adult of sound mind, with no criminal record; and who has devoted herself to giving her nephew a quality life. She has bonded with him.
13. That in his opinion, the Applicant has met all the legal and social parameters for adopting the subject child, according to the Children Act of 2022. That all the Adoption requirements having been met, the adoption is recommended.
Analysis and Determination
14. There are recommendations from the Guardian Ad Litem and the Adoption Agency. All requisite reports have been filed, and are recommending the adoption. The report by the Children’s Office is on the file. The same is dated 19th December 2025. The prospective adoptive child is the Applicant’s nephew. Hence this is a kinship adoption.
15. On an Application for adoption, the guiding star is the best interests of the child. That should be the paramount consideration, and it is the overriding principle in any child-related matter or proceeding. This principle is in fact, the cornerstone of Kenya’s family law, in matters relating, touching on or concerning children. Section 2 of the Children Act of 2022 has defined it as follows:
“The principle that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution, and Section 8 of the Act”
16. In Re GM aka AW (Child) [2026] eKLR, Nyaundi J observed that this principle not only remains the guiding principle, but that it has also been adopted in Article 53 of the Constitution, in Sections 8 and 194 of the Children Act of 2022, in the UN Convention of the Rights of the Child, as well as the African Charter on the Rights and Welfare of the Child.
17. Besides, the adoption must be voluntary in good faith and free from any illegality or improper motive. Any evidence of foul play, mischief, bad faith or of a criminal intent, will militate against the Application.
18. In determining an adoption Application, a court should consider the following factors:
(1) Bonding between the child and the prospective adoptive parent;
(2) Emotional well-being of the child;
(3) The fitness and suitability of the prospective adoptive parent;
(4) The child’s age and adoptability;
(5) Whether the requisite consents have been obtained;
(6) Where the child is of good age to understand the proceedings, his or her ability to express himself/herself;
(7) The Applicant’s motivation for adoption;
(8) The relationship between the Applicant and the child;
(9) The Report of the adoption society, that of the guardian ad litem; and that of the Children’s office.
19. The Applicant’s suitability and fitness to adopt will include her/his age and legal capacity; her/his character and moral standing; her/his physical and mental health; as well as her/his financial ability to maintain and educate this child.
20. It was held in Re JM (Minor) [2024] KEHC 10589 (KLR), that in adoption matters in Kenya, the applicable law includes Article 53 (2) of the Kenya Constitution and Section 8 (1)-(3) of the Children Act, as well as established common law principles.
21. This is a kinship adoption where the Applicant JESSICA BENSON, a female Kenyan citizen currently residing in the state of New Jersey in the United States of America, has applied to adopt LEVI MASESE BENSON her nephew who is a high school boy aged 15 years.
22. The boy is an orphan currently staying with his maternal grandmother the Applicant’s mother, and whose biological mother, the Late FRANJELYNE KWAMBOKA BENSON who died on 13th January 2020, is the Applicant’s biological sister. The Applicant has provided the Court with the boy’s Birth Certificate and his late mother’s Death Certificate; and stated that the whereabouts of his biological father, are unknown.
23. Where the details of a Minor’s biological are unknown, unavailable or non-existent, paternal consent to adoption may in appropriate cases be waived. For instance, in this case where they are not contained in the Birth Certificate, and his whereabouts are supposedly unknown. In any case, entries in official documents such as a Birth Certificate are conclusive, and may be rebutted only by credible evidence of the contrary.
24. The Kisii County Directorate of Children Services, undertook a due diligence social inquiry and filed its Report in this Court. The Report has in its findings reported as follows:
(1) That the Minor was declared free for adoption;
(2) That all the required procedures were duly followed in handling his care and protection by the prospective adoptive parent the Applicant;
(3) That the Minor was declared free for adoption on 30th October 2024 through Certificate No. 0985 by Kenyan to Kenyan Peace Initiative (KKPI), a Kenyan-based Adoption Agency;
(4) That the Minor has undergone psycho-social therapy;
(5) That the prospective adoptive parent (the Applicant) has bonded well with the Minor, is wholeheartedly devoted to giving him the best of her time and resources;
(6) That she is an adult of sound mind, with no criminal record, and having a good family and social background;
(7) That she has the financial capacity to provide for the Minor’s upkeep and education;
(8) That she has met all the legal and social requirements in adopting the Minor;
(9) Hence that she is fit and suitable to adopt the Minor.
25. When considering the Reports of the Children’s authorities and even those of the adoption agencies, the court has to remind itself that it is not bound by their recommendations. Those Reports are of persuasive effect only, and guided by the best interests of the child, the court has therefore to consider the circumstances of each case, as well as the requirements prescribed in the law (including case law); and arrive at its own decision.
26. This is a kinship adoption Application. Where the Minor and the Applicant are blood relatives with very close family, and already having a close bond. The Minor is a biological son of the Applicant’s biological sister. The Minor’s elder brother NAFTALI BENSON, is supportive of the proposed adoption.
27. Although the Minor is currently under the actual physical custody and supervision of his maternal grandmother MARY AMANYI MATUNDURA, he is already being supported, maintained and cared for by the Applicant his aunt. She has been supporting, maintaining and caring for him since the year 2020 when his mother died.
28. The Applicant is evidently committed to his welfare and well-being; and with a monthly income of approximately Ksh 400,000=, she has the financial capacity to cater for his upkeep and education. She also has mental capacity as well as an acceptable moral and social standing, and is under no notable legal incapacity.
29. This is a kinship adoption. Given that the two are related by blood, the adoption is advantageous. In the sense that there is already an existing family tie; there is also an already existing emotional bond; the Minor’s family identity is preserved; and there will be cultural continuity especially given that both the Applicant and the Minor, are Kenyans of the Kisii tribe.
30. Despite the Applicant’s residence abroad, and the Minor’s possible relocation to there, this fundamentally remains a kinship adoption by a Kenyan citizen adopting her nephew. The fact of residence abroad does not make it an inter-country adoption in the strict sense of the term. Being a term of art.
Final Disposition
31. In the end, I find that this Application has met the legal requirements under Sections 53, 191, 192 and 193 of the Children Act of 2022. I find her to be fit and suitable to adopt the said Minor. I consequently allow her Application, and make the following orders:
(a) The Applicant JESSICA BENSON, is hereby authorised to adopt LEVI MASESE BENSON, a Minor now aged 15 years, and who shall retain the same names.
(b) The Registrar General is hereby ordered to enter this adoption in the Adoption Children Register.
(c) BRANDON BENSON RORI, is hereby appointed as the Minor’s Legal Guardian.
(d) The Guardian Ad Litem is hereby discharged.