1. Before the court is the Originating Summons dated 15th February 2024 as amended on 15th July 2024 by which the Applicants seek the following orders: -
I. That MORRIS WANJOHI GITONGA and MARY NYAMBURA WANJOHI be allowed to adopt the child currently identified as SHAMIN WANJIRU WANGECI
II. That upon adoption, the child be renamed as SHAMIN WANJIRU WANJOHI
III. That ANTHONY MWITHIGA GITONGA be appointed the legal guardian of the child.
.
2. The application is supported by the Applicant’s statement of filed in court on 15th February 2024. The Application was canvassed by way of viva voce evidence on the virtual platform on 27th June 2024 and on 11th July 2024.
3. This is a kinship adoption proceeding in line with section 193 of the Children Act, 2022. The subject child is a niece to the Applicant, the minor’s mother, one CAROLINE GITONGA, being biological sister to the 1st Applicant herein. Kinship adoption is defined under section 2 of the Children’s Act as follows; -
“Kinship adoption” means the adoption of a child by a person who is relative of the child;
4. The Applicants testified at the hearing of this application that her main motivation for this application is the desire to give the minor love and provide her with emotional and social support. In their statement filed in court on 15th February 2024, the Applicants also stated that despite us living in the United States and working there, they always maintained a close relationship with the minor.
5. The Applicants confirmed to court that they understand the legal implications of an adoption order and undertakes to accord to the subject child all rights due to a biological child, including the child’s right to inheritance.
ANALYSIS AND DETERMINATION
6. Section 184(1) (a) and (b) of the Children 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.”
7. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022 which provides as follows; -
“183. (1) Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as “adoption order”, authorising an applicant to adopt a child.
(2) ……….
(3) In this Act, adoption means local, kinship and foreign adoption.
(4) For the purposes of this Part—
(a) “kinship adoption” has the meaning assigned to it in section 2;
(b)…………..
8. In relation to kinship adoption, the court in re R.N.W. (minor) (2019) eKLR stated as follows; -
“11. This is a Kinship Adoption as the applicant is related to the child since the child’s biological mother was a cousin to the Applicant.
12.Lady Justice Achode In re J.N.A. [2018] eKLR held that: -
“The indefinite moratorium issued by the Kenyan cabinet on 27th November, 2014 involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenya applicants, even those living abroad. Dual citizenship in our country is anchored in Article 16 of the Kenyan Constitution.
According to the Guidelines for Alternative Family Care of Children in Kenya page 153,“kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child. “Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoptions. This is therefore considered to be a local adoption.’”
9. I will first examine whether the child is eligible and free for adoption. Subsequently, I will thereafter examine the suitability of the Applicants before making my final orders.
10. The child who is the subject of the present adoption proceedings is currently twelve years having been born on 12th February 2012. Consequently, as at the date of this application, the subject child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children Act 2022.
11. The child’s biological mother, Ms. CAROLINE GITONGA who is still alive and currently lives with the minor in Githurai gave her consent vide a Consent Letter dated 18th March 2023 wherein she gave her consent for the adoption of the minor by the Applicants herein.
12. On 27th June 2024, the minor’s biological mother testified and told court that the whereabouts of the minor’s biological father is unknown that on 24th June 2016, she was granted sole guardianship of the minor in the Nairobi Children’s Court No. E115 of 2016. A copy of the court order was annexed to the instant Application for adoption. It is her position that the proposed adoption would help the minor acquire better life and is therefore in the best interest of the child.
13. At the hearing of this application, I interviewed the minor virtually in court and established that she is possessed of sufficient understanding of the consequences of adoption order. She informed court that the prospective adoptive parents are her uncle and aunty respectively and that she freely consents to being adopted by the Applicants.
14. KKPI Adoption Society, a registered adoption Society in Kenya, sat and deliberated on the applicants’ application and declared the child free for adoption on 31st May 2023 and cleared the Applicants. The Society signed and issued Certificate No. 907 of even date declaring the child free for adoption.
15. Having established that the subject child is free for adoption, this court will then proceed and analyze the evidence on record to determine whether the Applicants are suitable adoptive parents.
16. The Applicants are a married couple having married on 16th August,2017 in Nairobi Kenya. The Applicants attached to the application a copy of their marriage certificate as annex “MWG and MNW-2” evidencing this fact.
17. The 1st Applicant who is the minor’s uncle is a dual citizen of Kenya and United States of America (USA). The 2nd Applicant on the other hand is a permanent Resident of USA. That they currently live and work for gain in Phoenix Arizona. The Applicants attached copies of their passport and Green Card respectively in support of the Application. The Applicants have one biological child.
18. Financially, the Applicants testified that they are possessed of sufficient funds and assets to take case of the minor. That despite the applicants living and working in USA, they have always maintained a close relationship with the minor and that they meet her every other year when we come back home for the holidays and that they have continuously been talking to the minor on phone and finding out about her well-being and her progress in school.
19. It was deponed that prior to the 2nd Applicant moving to the USA in 2017, she spent quite a considerate amount of time living with the minor and that in the process, they have developed and maintained a very strong child-parent relationship.
20. That they have been providing for the minor since 2014 and they have jointly been paying the minors fees and everyday upkeep together with her wants which include but not limited to food, clothing and medical care.
21. On review of the evidence on record, I am satisfied that the Applicant is financially secure and is therefore capable of providing or the needs of the child. I am equally convinced that this kinship adoption would be in the best interest of the minor, particularly taking into account that she has developed a special bond with the Applicants.
22. The Applicants were examined by a doctor and were found to be both physically and emotionally fit and therefore meets the requirement of section 186 (6) (b) of the Children’s Act to undertake the proposed adoption.
23. Equally, the Applicants are of clean criminal record and have neither been charged nor convicted of any offence in the past as evidenced by a copy of Clearence Card issued by the State of Arizona (Annex MWG & MNW-6)) dated 5th January 2020. The Applicant therefore meets the requirement of section 186 (6) (a), (b), and (c) of the Children’s Act, 2022.
24. On religion, the Applicants testified that they are both devoted Christians and we wish to bring up the minor in a Christian environment teaching her Christian values and ethics.
25. The Applicants have appointed the 1st Applicant’s brother ANTHONY MWITHIGA GITONGA who is also the 2nd Applicant’s brother-in-law to be the legal guardian of the minor.
26. In the premises, I am satisfied that the Applicants are suitable adoptive parents for the minor.
27. Section 8(1) of the Children Act, 2022 directs that in deciding upon any matter involving a child, this court is 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. On 11th July 2024, I had the opportunity to interview the child virtually in court during the hearing of these proceedings. I found her very enthusiastic to be part of her uncle’s family, be considered a child of the Applicants hopefully join the Applicants in the USA for more expanded opportunities for her growth and development.
29. From the evidence available on record, it is clear that the Applicants’ intentions are to protect, support, provide inheritance for and maintain the child as their own. They understand their obligations as adoptive parents towards the child, including the right to inheritance.
30. I have perused the reports prepared by the adoption agency, the guardian ad litem and the director of children services. All were positive and all recommend the adoption.
31. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, I allow the application and hereby make the following orders: -
i. That MORRIS WANJOHI GITONGA and MARY NYAMBURA WANJOHI be and is hereby authorized to adopt the child currently identified as SHAMIN WANJIRU WANGECI.
ii. That upon adoption, the child be renamed as SHAMIN WANJIRU WANJOHI
iii. That ANTHONY MWITHIGA GITONGA be appointed the legal guardian of the child.
iv. That the Registrar General be and is hereby directed to make appropriate entries in the Adopted Children’s Register.
v. That the guardian ad litem be discharged.
32. 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. Kirui for the Applicant
I. That MORRIS WANJOHI GITONGA and MARY NYAMBURA WANJOHI be allowed to adopt the child currently identified as SHAMIN WANJIRU WANGECI
II. That upon adoption, the child be renamed as SHAMIN WANJIRU WANJOHI
III. That ANTHONY MWITHIGA GITONGA be appointed the legal guardian of the child.
.
2. The application is supported by the Applicant’s statement of filed in court on 15th February 2024. The Application was canvassed by way of viva voce evidence on the virtual platform on 27th June 2024 and on 11th July 2024.
3. This is a kinship adoption proceeding in line with section 193 of the Children Act, 2022. The subject child is a niece to the Applicant, the minor’s mother, one CAROLINE GITONGA, being biological sister to the 1st Applicant herein. Kinship adoption is defined under section 2 of the Children’s Act as follows; -
“Kinship adoption” means the adoption of a child by a person who is relative of the child;
4. The Applicants testified at the hearing of this application that her main motivation for this application is the desire to give the minor love and provide her with emotional and social support. In their statement filed in court on 15th February 2024, the Applicants also stated that despite us living in the United States and working there, they always maintained a close relationship with the minor.
5. The Applicants confirmed to court that they understand the legal implications of an adoption order and undertakes to accord to the subject child all rights due to a biological child, including the child’s right to inheritance.
ANALYSIS AND DETERMINATION
6. Section 184(1) (a) and (b) of the Children 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.”
7. The power of this court to make adoption orders is bestowed under section 183 of the Children Act, 2022 which provides as follows; -
“183. (1) Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as “adoption order”, authorising an applicant to adopt a child.
(2) ……….
(3) In this Act, adoption means local, kinship and foreign adoption.
(4) For the purposes of this Part—
(a) “kinship adoption” has the meaning assigned to it in section 2;
(b)…………..
8. In relation to kinship adoption, the court in re R.N.W. (minor) (2019) eKLR stated as follows; -
“11. This is a Kinship Adoption as the applicant is related to the child since the child’s biological mother was a cousin to the Applicant.
12.Lady Justice Achode In re J.N.A. [2018] eKLR held that: -
“The indefinite moratorium issued by the Kenyan cabinet on 27th November, 2014 involved inter-country and resident adoptions of Kenyan children by foreigners. It does not affect adoptions by Kenya applicants, even those living abroad. Dual citizenship in our country is anchored in Article 16 of the Kenyan Constitution.
According to the Guidelines for Alternative Family Care of Children in Kenya page 153,“kinship adoption is adoption by adopters who are kin or relatives within the extended family of the child. “Kenyans living abroad and wishing to adopt a Kenyan child will adopt as Kenyans by way of domestic adoptions. This is therefore considered to be a local adoption.’”
9. I will first examine whether the child is eligible and free for adoption. Subsequently, I will thereafter examine the suitability of the Applicants before making my final orders.
10. The child who is the subject of the present adoption proceedings is currently twelve years having been born on 12th February 2012. Consequently, as at the date of this application, the subject child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children Act 2022.
11. The child’s biological mother, Ms. CAROLINE GITONGA who is still alive and currently lives with the minor in Githurai gave her consent vide a Consent Letter dated 18th March 2023 wherein she gave her consent for the adoption of the minor by the Applicants herein.
12. On 27th June 2024, the minor’s biological mother testified and told court that the whereabouts of the minor’s biological father is unknown that on 24th June 2016, she was granted sole guardianship of the minor in the Nairobi Children’s Court No. E115 of 2016. A copy of the court order was annexed to the instant Application for adoption. It is her position that the proposed adoption would help the minor acquire better life and is therefore in the best interest of the child.
13. At the hearing of this application, I interviewed the minor virtually in court and established that she is possessed of sufficient understanding of the consequences of adoption order. She informed court that the prospective adoptive parents are her uncle and aunty respectively and that she freely consents to being adopted by the Applicants.
14. KKPI Adoption Society, a registered adoption Society in Kenya, sat and deliberated on the applicants’ application and declared the child free for adoption on 31st May 2023 and cleared the Applicants. The Society signed and issued Certificate No. 907 of even date declaring the child free for adoption.
15. Having established that the subject child is free for adoption, this court will then proceed and analyze the evidence on record to determine whether the Applicants are suitable adoptive parents.
16. The Applicants are a married couple having married on 16th August,2017 in Nairobi Kenya. The Applicants attached to the application a copy of their marriage certificate as annex “MWG and MNW-2” evidencing this fact.
17. The 1st Applicant who is the minor’s uncle is a dual citizen of Kenya and United States of America (USA). The 2nd Applicant on the other hand is a permanent Resident of USA. That they currently live and work for gain in Phoenix Arizona. The Applicants attached copies of their passport and Green Card respectively in support of the Application. The Applicants have one biological child.
18. Financially, the Applicants testified that they are possessed of sufficient funds and assets to take case of the minor. That despite the applicants living and working in USA, they have always maintained a close relationship with the minor and that they meet her every other year when we come back home for the holidays and that they have continuously been talking to the minor on phone and finding out about her well-being and her progress in school.
19. It was deponed that prior to the 2nd Applicant moving to the USA in 2017, she spent quite a considerate amount of time living with the minor and that in the process, they have developed and maintained a very strong child-parent relationship.
20. That they have been providing for the minor since 2014 and they have jointly been paying the minors fees and everyday upkeep together with her wants which include but not limited to food, clothing and medical care.
21. On review of the evidence on record, I am satisfied that the Applicant is financially secure and is therefore capable of providing or the needs of the child. I am equally convinced that this kinship adoption would be in the best interest of the minor, particularly taking into account that she has developed a special bond with the Applicants.
22. The Applicants were examined by a doctor and were found to be both physically and emotionally fit and therefore meets the requirement of section 186 (6) (b) of the Children’s Act to undertake the proposed adoption.
23. Equally, the Applicants are of clean criminal record and have neither been charged nor convicted of any offence in the past as evidenced by a copy of Clearence Card issued by the State of Arizona (Annex MWG & MNW-6)) dated 5th January 2020. The Applicant therefore meets the requirement of section 186 (6) (a), (b), and (c) of the Children’s Act, 2022.
24. On religion, the Applicants testified that they are both devoted Christians and we wish to bring up the minor in a Christian environment teaching her Christian values and ethics.
25. The Applicants have appointed the 1st Applicant’s brother ANTHONY MWITHIGA GITONGA who is also the 2nd Applicant’s brother-in-law to be the legal guardian of the minor.
26. In the premises, I am satisfied that the Applicants are suitable adoptive parents for the minor.
27. Section 8(1) of the Children Act, 2022 directs that in deciding upon any matter involving a child, this court is 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. On 11th July 2024, I had the opportunity to interview the child virtually in court during the hearing of these proceedings. I found her very enthusiastic to be part of her uncle’s family, be considered a child of the Applicants hopefully join the Applicants in the USA for more expanded opportunities for her growth and development.
29. From the evidence available on record, it is clear that the Applicants’ intentions are to protect, support, provide inheritance for and maintain the child as their own. They understand their obligations as adoptive parents towards the child, including the right to inheritance.
30. I have perused the reports prepared by the adoption agency, the guardian ad litem and the director of children services. All were positive and all recommend the adoption.
31. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, I allow the application and hereby make the following orders: -
i. That MORRIS WANJOHI GITONGA and MARY NYAMBURA WANJOHI be and is hereby authorized to adopt the child currently identified as SHAMIN WANJIRU WANGECI.
ii. That upon adoption, the child be renamed as SHAMIN WANJIRU WANJOHI
iii. That ANTHONY MWITHIGA GITONGA be appointed the legal guardian of the child.
iv. That the Registrar General be and is hereby directed to make appropriate entries in the Adopted Children’s Register.
v. That the guardian ad litem be discharged.
32. 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. Kirui for the Applicant