Introduction
1. The Applicant is a dual citizen of Kenya and the United States of America. At the time she filed the Originating Summons, she held a Certificate of Registration as a Kenyan citizen, serial Number CR 009589. Ms Kate Benton Crowley (hereafter “Kate”) was previously married to Kahindi Kazungu Iha (deceased). Mr. Iha passed away on 10th October 2013, following a tragic road accident.
2. The minor, Kelvin Kahindi Kazungu (hereafter “Kelvin” or “Minor”), is the son of Mr Iha and his former wife, Margaret Nyadzua. Kate averred in the Originating Summons that following the separation of Mr Iha and Ms Nyadzua, Mr Iha retained custody of Kelvin. Upon Mr Iha's demise, Kate agreed with Ms Nyadzua and her extended family that Kate would continue raising Kelvin and have his physical custody, as Ms Nyadzua is unemployed and not financially able to provide for him.
The Pleadings
3. Vide an Originating Summons dated 6th October 2023 Kate, through her advocate Barbara Ambaka & Associates, sought the following orders:-
1. That the Applicant be authorized to adopt Kelvin Kahindi Kazungu, a minor who is to be known as Kelvin Kahindi Kazungu and the Registrar General be directed to enter this adoption into the Register of Adoptions;
2. That Daniel Finbarr Crowley and Nicole Erin Crowley be appointed as the Legal Guardians of the Minor; and
3. That the child be indicated to have been born in Kenya.
4. In her affidavit in support of the Originating Summons, Kate averred that her marriage to Mr Iha was blessed with one issue: Asha Kahindi Kazungu, a daughter born on 5th December 2013. Following the untimely demise of Mr Iha, she sought legal guardianship of the minor, which orders were granted to her on 3rd April 2014. Since then, Kelvin has been in her legal custody.
5. Kate stated that she is in a relationship with one Alistair James Barnes. She indicated that Mr Barnes has a strong bond with both Kelvin and Asha. She desires to adopt Kelvin so that the minor can have access to her benefits without restrictions and also so that he can secure his future benefits and inheritance. She is a Christian and intends to raise Kelvin in the said religion. She has no criminal record.
6. Kate averred that the adoption application enjoys the support of the family members, on her side, as well as on the side of her late husband. She is employed by the Kenya Birds of Prey Trust in Kilifi as the Finance Manager and Consultant and is financially secure and has the means to take care of the child. She stated that the minor was freed for adoption on 6th September 2023.
7. The Originating Summons was supported by an affidavit in support, consent to act as legal guardian and various documents, including a certificate of Registration as a citizen of Kenya, the USA passport, marriage certificate, certificate of death, birth certificate of Asha, as well as other supporting documents whose provenance I have considered.
8. The minor Kelvin was born on 14th July 2007 at Takaungu in Kilifi County. Kelvin is presently 17 years old and is a student at St. Andrews Senior School, Turi, in Molo, Nakuru County. The Little Angels Network, an adoption society, assessed both the Applicant and the minor. On 6th September 2023 the Case Committee of the said institution deliberated on the matter. The said committee recommended the adoption, and noted in their report that “adoption would be in the child’s best interest”. Consequently, they issued a certificate to declare the child free for adoption, serial number 002378, pursuant to section 184(1)(a) of the Children Act, 2022.
Appointment of the guardian-ad-litem
9. The Applicant filed together with the Originating Summons a Chamber Summons application dated 6th October 2023 vide which she sought, inter alia, to have Felistus Garama Mweni be appointed as a guardian-ad-litem in respect of these proceedings. The said application was heard on 2nd November 2023. Being satisfied with the qualifications of the proposed guardian-ad-litem, I appointed him as such and directed that he file the requisite report within 30 days of the date thereof. I also directed the Director of Children Services to prepare and file a social enquiry report within 30 days of 2nd November 2023.
Testimonies of the Witnesses
10. This matter was heard on 19th February and 21st February and 26th March 2024. A total of 6 witnesses testified.
11. The 1st witness was Kate. Kate Benton Crowley is a holder of US passport No. 561267908. She testified that she lives in Kilifi. The minor is the son of her deceased husband and has been under her care since he died. It was her testimony that she understands that adoption is permanent and that she can’t change her mind once it is issued.
12. The 2nd witness was Margaret Nyadzua, also known as Margaret Nyadzua Shadrack. She is a holder of ID NO 30913407. She resides in Takaungu. Margaret testified that she is the mother of the minor and was married to Mr. Kazungu Iha. She further testified that she had agreed with Kate that she (Kate) would educate Kelvin and thereafter return him to Kenya; during his minority, Kate would live with Kelvin at Mnarani. As it wasn’t clear whether Margaret genuinely understood the effect of adoption, I directed that she be recalled for further hearing in the presence of a close relative. Margaret gave further testimony on 26th March 2024, in which she confirmed that she knew what effect the adoption of Kelvin by Kate would have. during her testimony, her mother, Kadzo Shadrack, was present. Ms. Shadrack affirmed that the family had no objection to the proposed adoption.
13. The 3rd witness was Daniel Finbarr Crowley. Daniel is a holder of American Passport No 661944288. Daniel and his wife, Nicole Erin Crowley, are the proposed legal guardians. He resides in the State of Maine in the United States of American. He testified that he has a strong relationship with Kelvin. He further testified that he knew the role of a legal guardian and was prepared, together with his wife, to play the said role as he loves the minor.
14. The 4th witness was Felistus Garama Mweni. He is a Kenyan citizen holding Kenyan ID NO 25196893. Felistus is the court-appointed guardian-ad-litem. He assessed the Applicant and prepared and filed the requisite report. In his report, he recommended the adoption. He testified that the biological mother agreed to the adoption. Felistus also testified that Kate and Kelvin had bonded very well.
15. The 5th witness was Winfred Kambua Kaluku. Winfred works with the Directorate of Children Services, Kilifi. She testified that they carried out a social enquiry at the home of the biological mother of the child on 10th February 2024. Ms Kaluku noted that the biological mother of the child was not completely knowledgeable about the effect of adoption. She recommended the adoption be subject to the biological mother being made fully aware of the effect of adoption.
16. Joshua Mwalimu Wambua was the 6th witness. Joshua is a social worker with Little Angels Network. His organization declared the child as being free for adoption and approved the Applicant. He recommended the adoption. In his testimony Mr. Wambua testified that the biological mother knew what the adoption entails and consented to it freely.
17. The minor, Kelvin Kahindi Kazungu, was the 7th Witness. After conducting an oral examination, I was satisfied that he understood the effect of an oath. Kelvin is a year 11 student at St. Andrews, Turi. He consented to the adoption.
18. The last witness was Kadzo Shadrack. Ms Shadrack is the grandmother of the minor (and the mother of Kelvin’s mother, Margaret Nyadzua). She gave her blessings to the adoption.
Analysis and Determination
19. I have seen the pleadings, the supporting documents, the report of the Directorate of Children Services, and the guardian ad litem. I have also heard the testimonies of the witnesses who testified in Court. The issues that call for my determination are whether the minor is available for adoption, whether the Applicant is fit to adopt him, and, most importantly, whether the adoption is in the best interest of the child.
20. The Applicant is the minor's stepmother. The minor’s father is deceased, and his mother has consented to the adoption.
21. Regarding the child’s nationality, it is clear that he is of Kenyan nationality, as both his parents are Kenyan.
22. In terms of age, the minor is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive child pursuant to Section 184 (b) of the Children Act, 2022. Further, Section 185(1) states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.
23. Concerning the Applicant’s suitability, she is an American citizen by birth and a naturalized Kenyan aged 43 years, which places her under the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. The Applicant has been described as financially stable. She has no criminal record. Since the placement of the minor into her custody, the child has fully bonded with her. She understands the consequences of adoption and knows that once an adoption order is made, it is permanent.
24. Consequently, I have no doubt that she has met the necessary requirements to adopt Kelvin. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
25. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a child.
26. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
27. Kelvin’s father died in 2013. His biological mother is, in her own admission, indigent. The Applicant has done her best to educate Kelvin. Master Kelvin attends one of Kenya’s most expensive private schools. He also needs basic necessities like food, shelter and clothing, which the Applicant has stepped in to provide. From the evidence adduced, he has fully integrated with Applicant. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
28. Based on the testimony that the biological mother gave upon being recalled, I am satisfied that she gave her consent willingly and that she now understands the effect of an adoption order. Given that Kelvin’s grandmother attended Court, I am also certain that the proposed adoption enjoys the support of the biological mother's family.
Disposition
29. I, therefore, find and hold that the adoption application has merit. The same is in the best interest of Kelvin Kahindi Kazungu. Consequently, I issue the following orders:-
1. I declare Kelvin Kahindi Kazungu (minor) a Kenyan citizen by birth;
2. I authorize the Applicant, Kate Benton Crowley, to adopt Kelvin Kahindi Kazungu (minor);
3. Kelvin Kahindi Kazungu (minor) shall retain his name, Kelvin Kahindi Kazungu;
4. I appoint Daniel Finbarr Crowley and Nicole Erin Crowley as the legal guardians of Kelvin Kahindi Kazungu (minor) and entrust them with the responsibility of taking care of him in the event that the Applicant becomes deceased or is otherwise permanently unable to take care of him before he attains the age of majority;
5. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Kelvin Kahindi Kazungu as being 14th July 2007 in the Adopted Children’s Register; and
6. The guardian-ad-litem Felistus Garama Mweni is hereby discharged.
30. Orders accordingly.
Dated and signed this 12th day of April 2024 at Mombasa.
1. The Applicant is a dual citizen of Kenya and the United States of America. At the time she filed the Originating Summons, she held a Certificate of Registration as a Kenyan citizen, serial Number CR 009589. Ms Kate Benton Crowley (hereafter “Kate”) was previously married to Kahindi Kazungu Iha (deceased). Mr. Iha passed away on 10th October 2013, following a tragic road accident.
2. The minor, Kelvin Kahindi Kazungu (hereafter “Kelvin” or “Minor”), is the son of Mr Iha and his former wife, Margaret Nyadzua. Kate averred in the Originating Summons that following the separation of Mr Iha and Ms Nyadzua, Mr Iha retained custody of Kelvin. Upon Mr Iha's demise, Kate agreed with Ms Nyadzua and her extended family that Kate would continue raising Kelvin and have his physical custody, as Ms Nyadzua is unemployed and not financially able to provide for him.
The Pleadings
3. Vide an Originating Summons dated 6th October 2023 Kate, through her advocate Barbara Ambaka & Associates, sought the following orders:-
1. That the Applicant be authorized to adopt Kelvin Kahindi Kazungu, a minor who is to be known as Kelvin Kahindi Kazungu and the Registrar General be directed to enter this adoption into the Register of Adoptions;
2. That Daniel Finbarr Crowley and Nicole Erin Crowley be appointed as the Legal Guardians of the Minor; and
3. That the child be indicated to have been born in Kenya.
4. In her affidavit in support of the Originating Summons, Kate averred that her marriage to Mr Iha was blessed with one issue: Asha Kahindi Kazungu, a daughter born on 5th December 2013. Following the untimely demise of Mr Iha, she sought legal guardianship of the minor, which orders were granted to her on 3rd April 2014. Since then, Kelvin has been in her legal custody.
5. Kate stated that she is in a relationship with one Alistair James Barnes. She indicated that Mr Barnes has a strong bond with both Kelvin and Asha. She desires to adopt Kelvin so that the minor can have access to her benefits without restrictions and also so that he can secure his future benefits and inheritance. She is a Christian and intends to raise Kelvin in the said religion. She has no criminal record.
6. Kate averred that the adoption application enjoys the support of the family members, on her side, as well as on the side of her late husband. She is employed by the Kenya Birds of Prey Trust in Kilifi as the Finance Manager and Consultant and is financially secure and has the means to take care of the child. She stated that the minor was freed for adoption on 6th September 2023.
7. The Originating Summons was supported by an affidavit in support, consent to act as legal guardian and various documents, including a certificate of Registration as a citizen of Kenya, the USA passport, marriage certificate, certificate of death, birth certificate of Asha, as well as other supporting documents whose provenance I have considered.
8. The minor Kelvin was born on 14th July 2007 at Takaungu in Kilifi County. Kelvin is presently 17 years old and is a student at St. Andrews Senior School, Turi, in Molo, Nakuru County. The Little Angels Network, an adoption society, assessed both the Applicant and the minor. On 6th September 2023 the Case Committee of the said institution deliberated on the matter. The said committee recommended the adoption, and noted in their report that “adoption would be in the child’s best interest”. Consequently, they issued a certificate to declare the child free for adoption, serial number 002378, pursuant to section 184(1)(a) of the Children Act, 2022.
Appointment of the guardian-ad-litem
9. The Applicant filed together with the Originating Summons a Chamber Summons application dated 6th October 2023 vide which she sought, inter alia, to have Felistus Garama Mweni be appointed as a guardian-ad-litem in respect of these proceedings. The said application was heard on 2nd November 2023. Being satisfied with the qualifications of the proposed guardian-ad-litem, I appointed him as such and directed that he file the requisite report within 30 days of the date thereof. I also directed the Director of Children Services to prepare and file a social enquiry report within 30 days of 2nd November 2023.
Testimonies of the Witnesses
10. This matter was heard on 19th February and 21st February and 26th March 2024. A total of 6 witnesses testified.
11. The 1st witness was Kate. Kate Benton Crowley is a holder of US passport No. 561267908. She testified that she lives in Kilifi. The minor is the son of her deceased husband and has been under her care since he died. It was her testimony that she understands that adoption is permanent and that she can’t change her mind once it is issued.
12. The 2nd witness was Margaret Nyadzua, also known as Margaret Nyadzua Shadrack. She is a holder of ID NO 30913407. She resides in Takaungu. Margaret testified that she is the mother of the minor and was married to Mr. Kazungu Iha. She further testified that she had agreed with Kate that she (Kate) would educate Kelvin and thereafter return him to Kenya; during his minority, Kate would live with Kelvin at Mnarani. As it wasn’t clear whether Margaret genuinely understood the effect of adoption, I directed that she be recalled for further hearing in the presence of a close relative. Margaret gave further testimony on 26th March 2024, in which she confirmed that she knew what effect the adoption of Kelvin by Kate would have. during her testimony, her mother, Kadzo Shadrack, was present. Ms. Shadrack affirmed that the family had no objection to the proposed adoption.
13. The 3rd witness was Daniel Finbarr Crowley. Daniel is a holder of American Passport No 661944288. Daniel and his wife, Nicole Erin Crowley, are the proposed legal guardians. He resides in the State of Maine in the United States of American. He testified that he has a strong relationship with Kelvin. He further testified that he knew the role of a legal guardian and was prepared, together with his wife, to play the said role as he loves the minor.
14. The 4th witness was Felistus Garama Mweni. He is a Kenyan citizen holding Kenyan ID NO 25196893. Felistus is the court-appointed guardian-ad-litem. He assessed the Applicant and prepared and filed the requisite report. In his report, he recommended the adoption. He testified that the biological mother agreed to the adoption. Felistus also testified that Kate and Kelvin had bonded very well.
15. The 5th witness was Winfred Kambua Kaluku. Winfred works with the Directorate of Children Services, Kilifi. She testified that they carried out a social enquiry at the home of the biological mother of the child on 10th February 2024. Ms Kaluku noted that the biological mother of the child was not completely knowledgeable about the effect of adoption. She recommended the adoption be subject to the biological mother being made fully aware of the effect of adoption.
16. Joshua Mwalimu Wambua was the 6th witness. Joshua is a social worker with Little Angels Network. His organization declared the child as being free for adoption and approved the Applicant. He recommended the adoption. In his testimony Mr. Wambua testified that the biological mother knew what the adoption entails and consented to it freely.
17. The minor, Kelvin Kahindi Kazungu, was the 7th Witness. After conducting an oral examination, I was satisfied that he understood the effect of an oath. Kelvin is a year 11 student at St. Andrews, Turi. He consented to the adoption.
18. The last witness was Kadzo Shadrack. Ms Shadrack is the grandmother of the minor (and the mother of Kelvin’s mother, Margaret Nyadzua). She gave her blessings to the adoption.
Analysis and Determination
19. I have seen the pleadings, the supporting documents, the report of the Directorate of Children Services, and the guardian ad litem. I have also heard the testimonies of the witnesses who testified in Court. The issues that call for my determination are whether the minor is available for adoption, whether the Applicant is fit to adopt him, and, most importantly, whether the adoption is in the best interest of the child.
20. The Applicant is the minor's stepmother. The minor’s father is deceased, and his mother has consented to the adoption.
21. Regarding the child’s nationality, it is clear that he is of Kenyan nationality, as both his parents are Kenyan.
22. In terms of age, the minor is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive child pursuant to Section 184 (b) of the Children Act, 2022. Further, Section 185(1) states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I have no doubt the child is fit for adoption.
23. Concerning the Applicant’s suitability, she is an American citizen by birth and a naturalized Kenyan aged 43 years, which places her under the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. The Applicant has been described as financially stable. She has no criminal record. Since the placement of the minor into her custody, the child has fully bonded with her. She understands the consequences of adoption and knows that once an adoption order is made, it is permanent.
24. Consequently, I have no doubt that she has met the necessary requirements to adopt Kelvin. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
25. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a child.
26. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
27. Kelvin’s father died in 2013. His biological mother is, in her own admission, indigent. The Applicant has done her best to educate Kelvin. Master Kelvin attends one of Kenya’s most expensive private schools. He also needs basic necessities like food, shelter and clothing, which the Applicant has stepped in to provide. From the evidence adduced, he has fully integrated with Applicant. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
28. Based on the testimony that the biological mother gave upon being recalled, I am satisfied that she gave her consent willingly and that she now understands the effect of an adoption order. Given that Kelvin’s grandmother attended Court, I am also certain that the proposed adoption enjoys the support of the biological mother's family.
Disposition
29. I, therefore, find and hold that the adoption application has merit. The same is in the best interest of Kelvin Kahindi Kazungu. Consequently, I issue the following orders:-
1. I declare Kelvin Kahindi Kazungu (minor) a Kenyan citizen by birth;
2. I authorize the Applicant, Kate Benton Crowley, to adopt Kelvin Kahindi Kazungu (minor);
3. Kelvin Kahindi Kazungu (minor) shall retain his name, Kelvin Kahindi Kazungu;
4. I appoint Daniel Finbarr Crowley and Nicole Erin Crowley as the legal guardians of Kelvin Kahindi Kazungu (minor) and entrust them with the responsibility of taking care of him in the event that the Applicant becomes deceased or is otherwise permanently unable to take care of him before he attains the age of majority;
5. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Kelvin Kahindi Kazungu as being 14th July 2007 in the Adopted Children’s Register; and
6. The guardian-ad-litem Felistus Garama Mweni is hereby discharged.
30. Orders accordingly.
Dated and signed this 12th day of April 2024 at Mombasa.