1. The Originating Summons before me is dated 17th September 2024. Vide the said Summons, the Joint Applicants seek the following orders:-
1. Pursuant to Article 14(4) of the Constitution of Kenya, 2010 and Part II, Section 7(1) of the Children Act, 2022, this honourable court be pleased to declare the child, Baby Emmanuel Moses aka Baby Immanuel, a Kenyan citizen by birth;
2. Pursuant to the provisions of section 187 of the Children Act, 2022, this honourable court be pleased to dispense with the requirements of the consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;
3. The Applicants, Meshack Mbogho and Grace Wachia Mwaliwa, be authorised to adopt Baby Emmanuel Moses, aka Baby Immanuel;
4. Upon the making of the adoption order, the child to be known as Emmanuel Moses Tole;
5. Upon the making of the adoption order, Olengoi Kibet Weldon and Sara Kina Mwaliwa be appointed the Legal Guardians of the child as provided for by the provisions of section 195 of the Children Act, 2022;
6. Upon the making of the adoption order, the Registrar General do make an entry recording the adoption and the estimated date of birth of the child as being 22nd June 2020 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
7. The costs of this application be costs in the cause.
2. The Joint Applicants are Kenyan adults born on 4th May 1967 and 9th October 1976, respectively. They are married to each other. Their customary marriage, celebrated under the customary laws of the Taita people, was solemnized on 17th November 2017 at the offices of the County commissioner at Voi. The Joint Applicants are Kenyan nationals of the African race, are both of sound minds and profess the Christian faith. They reside in Wundanyi in Taita Taveta County, where they have been for 10 years. They do not intend to move from the said abode. The two do not have criminal records.
3. The Joint Applicants do not have children of their own together. However, the 1st Applicant has two children, who are now adults from his previous marriage. Their names are Grace Wanjala Tole (aged 24) and Jimmy Mwachanya Tole (aged 23). Although the two issues are not her biological children the 2nd Applicant brought them up after their mother died. Grace and Jimmy gave their written consent to the adoption. The adoption application enjoys the support of the family members. The Joint Applicants describe themselves as being financially secure.
4. To secure the interest of the child, the Joint Applicants proposed to have Olengoi Kibet Weldon and Sara King Mwalimu appointed as legal guardians of the child so that in the event anything happens to them, he will be secure. The Joint Applicants propose to rename the child Emmanuel Moses Tole should the adoption applications be successful.
5. According to Buckner Kenya Adoption Services, the child, the subject of these proceedings, was found on 22nd August 2020 within Kimana town having been abandoned. A policeman rescued the said child and took him to Loitoktok Sub County Hospital where he was treated for pneumonia. The discovery was recorded vide OB No. 16/22/8/2020 at Kimana Police Post. Upon being treated he recovered. Subsequently, he was discharged on 23rd September 2020. The child was committed on the same date to Betania Children’s Home vide Care and Protection Cause No. 33 of 2020 for a period of 3 months, which period was subsequently renewed on 26th January 2021 for a further 3 years. The child stayed at Betania Children's Home for 3 years. During the entire period, no one claimed him.
6. The Case Committee of the Buckner Kenya Adoption Society declared the child free for adoption on 6th October 2023.
7. The Joint Applicants also filed a Chamber Summons application dated 17th September 2024 vide which they sought to have Renson Makumbi of Wundanyi appointed as the guardian ad litem in respect of this adoption proceedings and for him to conduct a home visit and to prepare and file a statutory report in terms of section 188(2) of the Children Act, 2022.
8. The Application also sought to have the County Coordinator of Children Services, Taita Taveta County, prepare and file the requisite report within 30 days of the order's issuance date.
9. Being satisfied with the suitability of the proposed guardian ad litem, this Court, on 9th October 2024, appointed him as the guardian ad litem in respect of these adoption proceedings and ordered both he and the County Coordinator to prepare and file the requisite reports within 30 days of the date thereof. I slated the matter for hearing of the Originating Summons on 13th November 2024.
10. The Originating Summons was heard on 13th November and 4th December 2024. A total of 6 witnesses testified. I shall give a summary of their testimony below.
11. Ms Mary Wanjiku Kamiri was the first Witness. She works as a social worker for Buckner Kenya Adoption Services. She testified that her organization assessed the Applicants by visiting their home at Wundanyi. It was her oral testimony that on 6th October 2023, the Buckner Kenya Adoption Agency case committee approved the Joint Applicants. The baby was placed with them on 22nd November 2023. For his part, the minor was freed for adoption on 6th October 2023. There was a follow-up on 22nd April 2024. Ms. Kamiri testified that the child had bonded well with Joint Applicants and that the application had the support of the family. She produced the report dated 18th October 2024 in support of her evidence. In both her oral testimony and in the report adoption of the child by the Joint Applicants was recommended as it would be in his best interest.
12. The second Witness was Jimmy Mwachanya Tole. Jimmy is the son of the first Applicant. He is a student at KCA University and resides at Zimmerman in Nairobi. He stated that he was aware of the proposal by his parents to adopt the child and that he was supportive of the same. He was also aware of the implications of adoption.
13. Mr Kenneth Mbito Mvurya, a children's officer working for the Taita Taveta County Government was the third Witness. He testified that he was ordered by the Court to assess the suitability of the Applicants. He visited them on 7th November 2024 and met the 2nd Applicant, Grace Wachia Mwaliwa, and baby Emmanuel Moses. He produced his report, in which he recommended the adoption as the Joint Applicants and the child had bonded well.
14. Grace Wanjala Tole was the fourth Witness. Like Jimmy Tole, she, too, is the child of the first Applicant. She is a student at Cooperative University College. She is aware of the implications of the adoption and expressed her support for it.
15. The fifth Witness was Grace Wachia Mwaliwa. Ms Mwaliwa is the second applicant and the wife of the first Applicant, and by dint of that, the stepmother of Jimmy and Grace Tole. She testified that she had no biological children, although he had brought up Jimmy and Grace since they were 4 and 3 years respectively. She is aware that adoption is permanent and expressed her intention to bring up the adoptive child to the best of their ability in the event the adoption application is allowed. If the application is successful, they propose to rename the child Emmanuel Moses Tole.
16. The guardian ad litem was the sixth Witness. Mr Renson Makumbi testified that he was a farmer. It was his evidence that he visited the Joint Applicants to assess their suitability. He found that the child was in good health. He prayed that the adoption application be allowed.
17. The 1st Applicant was the last Witness. He, just like the 2nd Applicant, resides at Wundanyi. He stated that the two children were now adults and had been left alone at home. He testified that they love children. He is aware that adoption is permanent and that Baby Emmanuel Moses would have the right to inherit from them.
18. I have considered the application herein, the documents in support thereof and the evidence of the various witnesses. The issues that emerge for determination are whether the child is available for adoption, if the applicant is fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
19. I have already set out the circumstances under which the child was found. The child was abandoned on 22nd August 2020, about 2 months after his birth. Nobody has come forward to claim him. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. The need for consent pursuant to sections 186(8) and 187 of the Children Act, 2022 is therefore dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
20. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned approximately two months after birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are not known is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is hereby presumed to be a Kenyan citizen by birth.
21. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act 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.
22. Concerning the Joint Applicants’ suitability, the 1st Applicant is a Kenyan citizen aged 57 while the 2nd Applicant is 48 years old at the time of this judgment, which places both of them within 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. From the records that I have seen, the Joint Applicants have the means to take care of the child. They have no criminal records. Since the placement of the minor into their custody, the child has fully bonded with them. They both understand the consequences of adoption and know that once an adoption order is made, it is permanent.
23. Consequently, I do not doubt that the Joint Applicants meet the requirements to adopt the child. 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.”
24. 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 baby.
25. 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.”
26. The child herein was found abandoned. He, therefore, needs basic necessities like food, shelter, education and clothing. He has fully integrated with the Joint Applicants. 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.”
27. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Emmanuel Moses, aka Baby Immanuel, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Joint Applicants, Meshack Mbogho and Grace Wachia Mwaliwa, are hereby authorised to adopt Baby Emmanuel Moses, aka Baby Immanuel;
4. Baby Emmanuel Moses, aka Baby Immanuel, shall henceforth be known as Emmanuel Moses Tole;
5. I appoint Olengoi Kibet Weldon and Sara Kina Mwaliwa as the Legal Guardians of Emmanuel Moses Tole and entrust them with the responsibility of taking care of him in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of the child before he attains the age of majority;
6. The Register General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Emmanuel Moses Tole as being 22nd June 2020 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
7. The guardian ad litem herein, Renson Makumbi, is hereby discharged.
28. I make no orders as to costs as this is a non-contentious adoption cause.
29. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.
1. Pursuant to Article 14(4) of the Constitution of Kenya, 2010 and Part II, Section 7(1) of the Children Act, 2022, this honourable court be pleased to declare the child, Baby Emmanuel Moses aka Baby Immanuel, a Kenyan citizen by birth;
2. Pursuant to the provisions of section 187 of the Children Act, 2022, this honourable court be pleased to dispense with the requirements of the consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;
3. The Applicants, Meshack Mbogho and Grace Wachia Mwaliwa, be authorised to adopt Baby Emmanuel Moses, aka Baby Immanuel;
4. Upon the making of the adoption order, the child to be known as Emmanuel Moses Tole;
5. Upon the making of the adoption order, Olengoi Kibet Weldon and Sara Kina Mwaliwa be appointed the Legal Guardians of the child as provided for by the provisions of section 195 of the Children Act, 2022;
6. Upon the making of the adoption order, the Registrar General do make an entry recording the adoption and the estimated date of birth of the child as being 22nd June 2020 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
7. The costs of this application be costs in the cause.
2. The Joint Applicants are Kenyan adults born on 4th May 1967 and 9th October 1976, respectively. They are married to each other. Their customary marriage, celebrated under the customary laws of the Taita people, was solemnized on 17th November 2017 at the offices of the County commissioner at Voi. The Joint Applicants are Kenyan nationals of the African race, are both of sound minds and profess the Christian faith. They reside in Wundanyi in Taita Taveta County, where they have been for 10 years. They do not intend to move from the said abode. The two do not have criminal records.
3. The Joint Applicants do not have children of their own together. However, the 1st Applicant has two children, who are now adults from his previous marriage. Their names are Grace Wanjala Tole (aged 24) and Jimmy Mwachanya Tole (aged 23). Although the two issues are not her biological children the 2nd Applicant brought them up after their mother died. Grace and Jimmy gave their written consent to the adoption. The adoption application enjoys the support of the family members. The Joint Applicants describe themselves as being financially secure.
4. To secure the interest of the child, the Joint Applicants proposed to have Olengoi Kibet Weldon and Sara King Mwalimu appointed as legal guardians of the child so that in the event anything happens to them, he will be secure. The Joint Applicants propose to rename the child Emmanuel Moses Tole should the adoption applications be successful.
5. According to Buckner Kenya Adoption Services, the child, the subject of these proceedings, was found on 22nd August 2020 within Kimana town having been abandoned. A policeman rescued the said child and took him to Loitoktok Sub County Hospital where he was treated for pneumonia. The discovery was recorded vide OB No. 16/22/8/2020 at Kimana Police Post. Upon being treated he recovered. Subsequently, he was discharged on 23rd September 2020. The child was committed on the same date to Betania Children’s Home vide Care and Protection Cause No. 33 of 2020 for a period of 3 months, which period was subsequently renewed on 26th January 2021 for a further 3 years. The child stayed at Betania Children's Home for 3 years. During the entire period, no one claimed him.
6. The Case Committee of the Buckner Kenya Adoption Society declared the child free for adoption on 6th October 2023.
7. The Joint Applicants also filed a Chamber Summons application dated 17th September 2024 vide which they sought to have Renson Makumbi of Wundanyi appointed as the guardian ad litem in respect of this adoption proceedings and for him to conduct a home visit and to prepare and file a statutory report in terms of section 188(2) of the Children Act, 2022.
8. The Application also sought to have the County Coordinator of Children Services, Taita Taveta County, prepare and file the requisite report within 30 days of the order's issuance date.
9. Being satisfied with the suitability of the proposed guardian ad litem, this Court, on 9th October 2024, appointed him as the guardian ad litem in respect of these adoption proceedings and ordered both he and the County Coordinator to prepare and file the requisite reports within 30 days of the date thereof. I slated the matter for hearing of the Originating Summons on 13th November 2024.
10. The Originating Summons was heard on 13th November and 4th December 2024. A total of 6 witnesses testified. I shall give a summary of their testimony below.
11. Ms Mary Wanjiku Kamiri was the first Witness. She works as a social worker for Buckner Kenya Adoption Services. She testified that her organization assessed the Applicants by visiting their home at Wundanyi. It was her oral testimony that on 6th October 2023, the Buckner Kenya Adoption Agency case committee approved the Joint Applicants. The baby was placed with them on 22nd November 2023. For his part, the minor was freed for adoption on 6th October 2023. There was a follow-up on 22nd April 2024. Ms. Kamiri testified that the child had bonded well with Joint Applicants and that the application had the support of the family. She produced the report dated 18th October 2024 in support of her evidence. In both her oral testimony and in the report adoption of the child by the Joint Applicants was recommended as it would be in his best interest.
12. The second Witness was Jimmy Mwachanya Tole. Jimmy is the son of the first Applicant. He is a student at KCA University and resides at Zimmerman in Nairobi. He stated that he was aware of the proposal by his parents to adopt the child and that he was supportive of the same. He was also aware of the implications of adoption.
13. Mr Kenneth Mbito Mvurya, a children's officer working for the Taita Taveta County Government was the third Witness. He testified that he was ordered by the Court to assess the suitability of the Applicants. He visited them on 7th November 2024 and met the 2nd Applicant, Grace Wachia Mwaliwa, and baby Emmanuel Moses. He produced his report, in which he recommended the adoption as the Joint Applicants and the child had bonded well.
14. Grace Wanjala Tole was the fourth Witness. Like Jimmy Tole, she, too, is the child of the first Applicant. She is a student at Cooperative University College. She is aware of the implications of the adoption and expressed her support for it.
15. The fifth Witness was Grace Wachia Mwaliwa. Ms Mwaliwa is the second applicant and the wife of the first Applicant, and by dint of that, the stepmother of Jimmy and Grace Tole. She testified that she had no biological children, although he had brought up Jimmy and Grace since they were 4 and 3 years respectively. She is aware that adoption is permanent and expressed her intention to bring up the adoptive child to the best of their ability in the event the adoption application is allowed. If the application is successful, they propose to rename the child Emmanuel Moses Tole.
16. The guardian ad litem was the sixth Witness. Mr Renson Makumbi testified that he was a farmer. It was his evidence that he visited the Joint Applicants to assess their suitability. He found that the child was in good health. He prayed that the adoption application be allowed.
17. The 1st Applicant was the last Witness. He, just like the 2nd Applicant, resides at Wundanyi. He stated that the two children were now adults and had been left alone at home. He testified that they love children. He is aware that adoption is permanent and that Baby Emmanuel Moses would have the right to inherit from them.
18. I have considered the application herein, the documents in support thereof and the evidence of the various witnesses. The issues that emerge for determination are whether the child is available for adoption, if the applicant is fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
19. I have already set out the circumstances under which the child was found. The child was abandoned on 22nd August 2020, about 2 months after his birth. Nobody has come forward to claim him. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. The need for consent pursuant to sections 186(8) and 187 of the Children Act, 2022 is therefore dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
20. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned approximately two months after birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are not known is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is hereby presumed to be a Kenyan citizen by birth.
21. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act 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.
22. Concerning the Joint Applicants’ suitability, the 1st Applicant is a Kenyan citizen aged 57 while the 2nd Applicant is 48 years old at the time of this judgment, which places both of them within 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. From the records that I have seen, the Joint Applicants have the means to take care of the child. They have no criminal records. Since the placement of the minor into their custody, the child has fully bonded with them. They both understand the consequences of adoption and know that once an adoption order is made, it is permanent.
23. Consequently, I do not doubt that the Joint Applicants meet the requirements to adopt the child. 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.”
24. 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 baby.
25. 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.”
26. The child herein was found abandoned. He, therefore, needs basic necessities like food, shelter, education and clothing. He has fully integrated with the Joint Applicants. 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.”
27. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Emmanuel Moses, aka Baby Immanuel, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Joint Applicants, Meshack Mbogho and Grace Wachia Mwaliwa, are hereby authorised to adopt Baby Emmanuel Moses, aka Baby Immanuel;
4. Baby Emmanuel Moses, aka Baby Immanuel, shall henceforth be known as Emmanuel Moses Tole;
5. I appoint Olengoi Kibet Weldon and Sara Kina Mwaliwa as the Legal Guardians of Emmanuel Moses Tole and entrust them with the responsibility of taking care of him in the event the Joint Applicants become deceased or are otherwise permanently unable to take care of the child before he attains the age of majority;
6. The Register General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Emmanuel Moses Tole as being 22nd June 2020 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
7. The guardian ad litem herein, Renson Makumbi, is hereby discharged.
28. I make no orders as to costs as this is a non-contentious adoption cause.
29. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.