1. Before the court is the Originating Summons dated 19th June 2024 by which the Applicants seek the following orders: -
i. That the child be presumed to be a Kenya Citizen by birth.
ii. That the Director of Immigration be authorized to issue the child with a Kenyan Passport.
iii. That the JOSEPH KIMANI KIMOTHO and CAROLINE WAMBUI KIMANI be authorized to adopt the child to be known as ESTHER MUTHONI KIMANI.
iv. That LEONARD NJUGUNA KIMOTHO and MARY KIMOTHO be appointed legal guardians of the child in the event of the death or incapacity of the Applicants before the child is of full age and fully self-reliant.
v. That the court be pleased to make any further orders it deems necessary.
2. The application is supported by the Applicants’ statement dated 19th June 2024 and an Affidavit of even date sworn by the Applicants in support thereof. The Application was canvassed by way of viva voce evidence on the virtual platform on 25th July 2024.
3. The Applicants are Kenyan Nationals and are husband and wife, having celebrated their union on 8th March 2008. The couple’s marriage certificate was annexed to the summons as “JO-CA-12”. The marriage has been blessed with three biological children, one girl and two boys born in the years 2009, 2012 and 2021 respectively.
4. The Applicants testified in court that their main motivation for this application is the desire to expand their family as well as to provide for the minor who is an abandoned child.
5. The Applicants, each confirmed to court at the hearing of this application that they do understand the legal implications of an adoption order. They both undertake to accord to the subject child all rights due to a biological child including the right of inheritance.
ANALYSIS AND DETERMINATION
6. Section 184(1) (a) and (b) of the Children’s Act 2022 sets the prerequisites which must be met before an adoption order can be made. The section provides as follows: -
“(1)A person shall not commence any arrangements for the adoption of a child unless—
(a) the council, in accordance with the rules, has declared the child free for adoption; and
(b) the child has attained the age of six weeks.”
Eligibility of the Child
7. The child who is the subject of the present adoption proceedings is estimated to have been born on 13th October 2022. The child was discovered abandoned by the mother on 13th October 2022 in the Gwa-Kairu Area of Theta Ward, within the Juja Sub-County and was rescued by good Samaritans and a report in that regard was consequently made to Murera Police Station under OB No. 13/14/10/2022.
8. Upon rescue, the police informed the Juja Children\'s Office of the child\'s abandonment, who then took up the matter and sought placement of the child at Rehema PEFA Children\'s Home where the minor was on 14th October 2022 admitted for care and protection.
9. On 8th November 2022, the Children’s Court at Thika in the Protection and Care Case No. 879 of 2023, upon application by the Juja Children’s Office, committed the child to PEFA Children\'s Home for care and protection for a period of three years.
10. Little Angels Network, a registered adoption agency, sat and deliberated on the Applicants’ application for adoption and declared the child free for adoption vide their report of 13th October 2023. The Society consequently signed and issued Certificate No. 002407 of even date, declaring the child free for adoption.
11. On 27th July 2023, the child was placed in the custody of the Applicants for mandatory bonding prior to adoption. The Applicants have since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 20th September 2023 from Theta Police Station.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged one year nine months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“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 of Kenya \"
16. The subject child was abandoned at birth in Gwa-Kairu Area of Theta Ward, within the Juja Sub-County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicants
17. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the Applicants are suitable adoptive parents.
18. The Applicants are Kenyan nationals and are husband and wife. They got married to each other on 8th March 2008 and the marriage has been blessed with three biological children, one girl and two boys.
19. The applicants are both gainfully employed as Advocates of the High Court of Kenya. According to evidence on record, the Applicants own a home and live in their own compound with a comfortable environment and suitable for raising the minor.
20. The Applicants testified that they have means to provide for the child. As proof of their financial ability, the Applicants annexed copies of their bank statements as Annex “JO-CA17” evidencing their income and financial ability.
21. Further, a pre-placement report dated 8th July 2021 by Little Angels Network, the adoption agency in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
22. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
23. The Applicants were both examined by a doctor and were found to be both mentally and physically fit. They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations (Annex JO-CA 16) indicating that both have no criminal record.
24. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same.
25. The applicants have appointed LEONARD NJUGUNA KIMOTHO and MARY NJOKI KIMOTHO who are the 1st Applicant’s brother and sister-in-law respectively, to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardians have signed a consent dated 16th May 2021 (Exhibit JO-CA19A & JO-CA19B) indicating their willingness to act as legal guardians for the child.
26. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
27. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. The Section provides: -
“(8). (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) …………”
28. This was a child who was abandoned after birth. She faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
29. The child has lived with the applicants in their home since 27th October 2023. She has bonded well with the applicants whom she views as her parents. I was able to see the child online. She was a healthy and happy baby girl. She was very much at ease in the company of the applicants.
30. A home visit was conducted by Guardian ad litem reveals that the Applicants are a happy and contented couple and would definitely take good care of the minor in question. That the minor has gelled well with the Applicants’ biological children and that she feels as one of them.
31. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
32. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, allow the application and hereby make the following orders: -
i. That the JOSEPH KIMANI KIMOTHO and CAROLINE WAMBUI KIMANI be and are hereby authorized to adopt BABY ELIZABETH PENDO.
ii. That upon adoption, the minor shall henceforth be known as ESTHER MUTHONI KIMANI.
iii. That the child is hereby presumed to be a Kenyan Citizen by birth and is entitled to all rights and privileges arising therefrom.
iv. That the Director of Immigration be and is hereby authorized to issue the child with a Kenyan Passport.
v. That the Registrar General is hereby directed to enter this adoption into the Adopted Children Register.
vi. That the consent of biological parents of the minor be dispensed with since the child was abandoned shortly after birth.
vii. That LEONARD NJUGUNA KIMOTHO and MARY KIMOTHO be and are hereby appointed legal guardians of the child in the event of the death or incapacity of the Applicants before the child is of full age and fully self-reliant.
viii. The Guardian ad litem is hereby discharged.
33. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses Court Assistant
Ms. Kibet h/b for Njenga….. for the Applicant
i. That the child be presumed to be a Kenya Citizen by birth.
ii. That the Director of Immigration be authorized to issue the child with a Kenyan Passport.
iii. That the JOSEPH KIMANI KIMOTHO and CAROLINE WAMBUI KIMANI be authorized to adopt the child to be known as ESTHER MUTHONI KIMANI.
iv. That LEONARD NJUGUNA KIMOTHO and MARY KIMOTHO be appointed legal guardians of the child in the event of the death or incapacity of the Applicants before the child is of full age and fully self-reliant.
v. That the court be pleased to make any further orders it deems necessary.
2. The application is supported by the Applicants’ statement dated 19th June 2024 and an Affidavit of even date sworn by the Applicants in support thereof. The Application was canvassed by way of viva voce evidence on the virtual platform on 25th July 2024.
3. The Applicants are Kenyan Nationals and are husband and wife, having celebrated their union on 8th March 2008. The couple’s marriage certificate was annexed to the summons as “JO-CA-12”. The marriage has been blessed with three biological children, one girl and two boys born in the years 2009, 2012 and 2021 respectively.
4. The Applicants testified in court that their main motivation for this application is the desire to expand their family as well as to provide for the minor who is an abandoned child.
5. The Applicants, each confirmed to court at the hearing of this application that they do understand the legal implications of an adoption order. They both undertake to accord to the subject child all rights due to a biological child including the right of inheritance.
ANALYSIS AND DETERMINATION
6. Section 184(1) (a) and (b) of the Children’s Act 2022 sets the prerequisites which must be met before an adoption order can be made. The section provides as follows: -
“(1)A person shall not commence any arrangements for the adoption of a child unless—
(a) the council, in accordance with the rules, has declared the child free for adoption; and
(b) the child has attained the age of six weeks.”
Eligibility of the Child
7. The child who is the subject of the present adoption proceedings is estimated to have been born on 13th October 2022. The child was discovered abandoned by the mother on 13th October 2022 in the Gwa-Kairu Area of Theta Ward, within the Juja Sub-County and was rescued by good Samaritans and a report in that regard was consequently made to Murera Police Station under OB No. 13/14/10/2022.
8. Upon rescue, the police informed the Juja Children\'s Office of the child\'s abandonment, who then took up the matter and sought placement of the child at Rehema PEFA Children\'s Home where the minor was on 14th October 2022 admitted for care and protection.
9. On 8th November 2022, the Children’s Court at Thika in the Protection and Care Case No. 879 of 2023, upon application by the Juja Children’s Office, committed the child to PEFA Children\'s Home for care and protection for a period of three years.
10. Little Angels Network, a registered adoption agency, sat and deliberated on the Applicants’ application for adoption and declared the child free for adoption vide their report of 13th October 2023. The Society consequently signed and issued Certificate No. 002407 of even date, declaring the child free for adoption.
11. On 27th July 2023, the child was placed in the custody of the Applicants for mandatory bonding prior to adoption. The Applicants have since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 20th September 2023 from Theta Police Station.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged one year nine months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“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 of Kenya \"
16. The subject child was abandoned at birth in Gwa-Kairu Area of Theta Ward, within the Juja Sub-County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
The Applicants
17. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the Applicants are suitable adoptive parents.
18. The Applicants are Kenyan nationals and are husband and wife. They got married to each other on 8th March 2008 and the marriage has been blessed with three biological children, one girl and two boys.
19. The applicants are both gainfully employed as Advocates of the High Court of Kenya. According to evidence on record, the Applicants own a home and live in their own compound with a comfortable environment and suitable for raising the minor.
20. The Applicants testified that they have means to provide for the child. As proof of their financial ability, the Applicants annexed copies of their bank statements as Annex “JO-CA17” evidencing their income and financial ability.
21. Further, a pre-placement report dated 8th July 2021 by Little Angels Network, the adoption agency in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
22. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
23. The Applicants were both examined by a doctor and were found to be both mentally and physically fit. They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations (Annex JO-CA 16) indicating that both have no criminal record.
24. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same.
25. The applicants have appointed LEONARD NJUGUNA KIMOTHO and MARY NJOKI KIMOTHO who are the 1st Applicant’s brother and sister-in-law respectively, to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardians have signed a consent dated 16th May 2021 (Exhibit JO-CA19A & JO-CA19B) indicating their willingness to act as legal guardians for the child.
26. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
27. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. The Section provides: -
“(8). (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) …………”
28. This was a child who was abandoned after birth. She faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
29. The child has lived with the applicants in their home since 27th October 2023. She has bonded well with the applicants whom she views as her parents. I was able to see the child online. She was a healthy and happy baby girl. She was very much at ease in the company of the applicants.
30. A home visit was conducted by Guardian ad litem reveals that the Applicants are a happy and contented couple and would definitely take good care of the minor in question. That the minor has gelled well with the Applicants’ biological children and that she feels as one of them.
31. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
32. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, allow the application and hereby make the following orders: -
i. That the JOSEPH KIMANI KIMOTHO and CAROLINE WAMBUI KIMANI be and are hereby authorized to adopt BABY ELIZABETH PENDO.
ii. That upon adoption, the minor shall henceforth be known as ESTHER MUTHONI KIMANI.
iii. That the child is hereby presumed to be a Kenyan Citizen by birth and is entitled to all rights and privileges arising therefrom.
iv. That the Director of Immigration be and is hereby authorized to issue the child with a Kenyan Passport.
v. That the Registrar General is hereby directed to enter this adoption into the Adopted Children Register.
vi. That the consent of biological parents of the minor be dispensed with since the child was abandoned shortly after birth.
vii. That LEONARD NJUGUNA KIMOTHO and MARY KIMOTHO be and are hereby appointed legal guardians of the child in the event of the death or incapacity of the Applicants before the child is of full age and fully self-reliant.
viii. The Guardian ad litem is hereby discharged.
33. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses Court Assistant
Ms. Kibet h/b for Njenga….. for the Applicant