1. What is before me is the Originating Summons dated 19th September 2024, vide which the Applicant seeks 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 is pleased to declare the child, Baby Miriam Gabrielle, a Kenya 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 provision of section 186 of the Children Act, 2022.
(3) The Applicant, Matildah Wavua Mwaluandu, be authorized to adopt Baby Miriam Gabrielle;
(4) Upon the making of the adoption order, the child to be known as Joy Wakio Wavua;
(5) Upon the making of the adoption order, Stephen Mwakaba Mwaluandu and Caren Jepkorir Kigen be appointed Legal Guardians of the child as provided for by section 195 of the Children Act, 2022;
(6) Upon the making of the adoption order, the Registrar General do make an entry in the Adopted Children Registrar recording the adoption and the estimated date of birth of the child as 28th August 2021 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 Applicant is a female adult Kenyan of sound mind. She was born on 26th June 1980 and ails from Mlechi, Mbale in Wundanyi in Taita Taveta County. She is of the African race. According to the Originating Summons, she is financially stable and of Christian faith, has no criminal record, and is single. The proposed adoption of Baby Miriam Gabrielle by her enjoys the support of her family and friends. If the adoption is successful, she proposes to rename the child as Joy Wakio Wavua. The child has been with her since 17th July 2023, after she signed the Foster Care Agreement with the Africa Gospel Church Baby Centre.
3. The child, Miriam Gabrielle, is estimated to have been born on 28th August 2021. She was abandoned outside the Child Protection Unit at Nakuru Central Police Station on 28th February 2022 when she was approximately six months old. The incidence was recorded vide OB entry No. 16/28/02/2022. She was admitted to Africa Gospel Church Baby Centre on the same day for care and protection.
4. On 24th March 2022, the Children's Court at Nakuru committed the child to Africa Gospel Church Baby Centre vide Care and Protection Cause No. E072 of 2022 for a period of 3 years. Despite extensive inquiries by the police and the aforesaid children's home, no one has come forward to claim the child.
5. The case committed of the Little Angels Network deliberated on the matter at a meeting held on 5th July 2023. Being satisfied that the child was free for adoption, the said committed issued a certificate dated 5th July 2023 declaring the child herein as being free for adoption. The certificate bears the serial number 002371.
6. The Applicant filed together with her application a Chamber Summons application dated 19th September 2024, vide which she sought to have Alfred Mayieka Agwata appointed as a guardian ad litem in respect of these proceedings and for the said person to conduct a home visit and to prepare and file the requisite report. She also sought an order directing the County Director of Children's Services, through the Children Department Voi, to prepare the relevant report concerning this Adoption and submit the same to the Deputy Registrar of this Court within 30 days of the date of the order.
7. I heard the Chamber Summons application on 9th October 2024. Being satisfied with the suitability of Mr Alfred Mayieka Agwata to be the guardian ad litem in respect of these proceedings, I appointed him as such and ordered that both he and the County Director of Children Services file their respective reports within 30 days of the said date. I slated the Originating Summons for hearing on 13th November 2024.
8. Both filed their respective reports. The reports are undated. I have considered the said reports in this decision.
9. I heard the matter on 13th November and 4th December 2024. I shall briefly set out the testimonies of the parties below.
10. The first Witness was Mr Kenneth Mbito Mvurya. Mr Mvurya is the County Coordinator of Children Services Taita Taveta County. He testified that upon receipt of the Court order, he visited the Applicant’s home on 7th November 2024. He found that the Applicant’s home environment was conducive to the growth and well-being of the child. He further testified that the child had bonded well with the proposed adoptive parent. The witness produced a report he had written recommending the adoption.
11. Mr Joshua Mwalimu Wambua was the second Witness. He is a social worker with Little Angels Network. He testified that his organization assessed the applicant and the child for adoption. The report vide which the child was freed is dated 5th July 2023. The certificate freeing the child for adoption bears the serial number 002371, while the report assessing the applicant is dated 3rd June 2021. Mr. Wambua testified that his organization recommended the adoption as it would be in the child's best interest.
12. The third witness was Matildah Wavua Mwaluandu. Ms Mwaluandu is the Applicant in this matter. The Applicant testified that she resides in Mlechi, Mbale. She is a businesswoman. She wishes to adopt the child, the subject of these proceedings. She had tried to have a child of her own without success. She is aware that an adoption order is permanent and that the child would have the right to inherit from her estate. She testified that she had appointed her brother as the legal guardian with his wife to secure the child’s rights. She testified that the child would be called Joy Wakio Wavua if the application was approved.
13. The last Witness was Alfred Mayieka Agwata. Mr Agwata is the court-appointed guardian ad litem. Mr Agwata testified that upon appointment, he visited the applicant at her home to satisfy himself that the home environment was sound. It was his testimony that the Applicant lives in a three-bedroom house with a shop. In his report, the guardian ad litem reported that the Applicant and the child had bonded well and that the child called the Applicant “Mum”. He recommended the adoption.
14. I have considered the application herein, the documents in support thereof and 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.
15. I have already set out the circumstances under which the child was found. The child was abandoned when she was about 6 months old. Nobody has come forward to claim her. 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.”
16. Regarding the baby’s nationality, the evidence adduced shows that she was found abandoned around 6 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 presumed to be a Kenyan citizen by birth.
17. 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.
18. Concerning the Applicant’s suitability, she is a Kenyan citizen aged 44 years at the time of this judgment, which places her 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 Applicant has the means to take care of the child. She has no criminal records. 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.
19. Consequently, I do not doubt that she meets the requirements to adopt the baby. 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.”
20. 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.
21. 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.”
22. The child herein was found abandoned. She, therefore, needs basic necessities like food, shelter, education and clothing. She has fully integrated with the 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.”
23. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Miriam Gabrielle, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Applicant, Matildah Wavua Mwaluandu, is hereby authorised to adopt Baby Miriam Gabrielle;
4. Baby Miriam Gabrielle shall henceforth be known as Joy Wakio Wavua;
5. I appoint Stephen Mwakaba Mwaluandu and Caren Jepkorir Kigen as the joint Legal Guardians of Joy Wakio Wavua and entrust them with the responsibility of taking care of her in the event the Applicant becomes deceased or is otherwise permanently unable to take care of the said child before she 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 Joy Wakio Wavua as being 28th August 2021 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022.
7. The guardian ad litem, Alfred Mayieka Agwata, is hereby discharged.
24. I make no orders regarding costs as this is a non-contentious adoption cause.
25. 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 is pleased to declare the child, Baby Miriam Gabrielle, a Kenya 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 provision of section 186 of the Children Act, 2022.
(3) The Applicant, Matildah Wavua Mwaluandu, be authorized to adopt Baby Miriam Gabrielle;
(4) Upon the making of the adoption order, the child to be known as Joy Wakio Wavua;
(5) Upon the making of the adoption order, Stephen Mwakaba Mwaluandu and Caren Jepkorir Kigen be appointed Legal Guardians of the child as provided for by section 195 of the Children Act, 2022;
(6) Upon the making of the adoption order, the Registrar General do make an entry in the Adopted Children Registrar recording the adoption and the estimated date of birth of the child as 28th August 2021 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 Applicant is a female adult Kenyan of sound mind. She was born on 26th June 1980 and ails from Mlechi, Mbale in Wundanyi in Taita Taveta County. She is of the African race. According to the Originating Summons, she is financially stable and of Christian faith, has no criminal record, and is single. The proposed adoption of Baby Miriam Gabrielle by her enjoys the support of her family and friends. If the adoption is successful, she proposes to rename the child as Joy Wakio Wavua. The child has been with her since 17th July 2023, after she signed the Foster Care Agreement with the Africa Gospel Church Baby Centre.
3. The child, Miriam Gabrielle, is estimated to have been born on 28th August 2021. She was abandoned outside the Child Protection Unit at Nakuru Central Police Station on 28th February 2022 when she was approximately six months old. The incidence was recorded vide OB entry No. 16/28/02/2022. She was admitted to Africa Gospel Church Baby Centre on the same day for care and protection.
4. On 24th March 2022, the Children's Court at Nakuru committed the child to Africa Gospel Church Baby Centre vide Care and Protection Cause No. E072 of 2022 for a period of 3 years. Despite extensive inquiries by the police and the aforesaid children's home, no one has come forward to claim the child.
5. The case committed of the Little Angels Network deliberated on the matter at a meeting held on 5th July 2023. Being satisfied that the child was free for adoption, the said committed issued a certificate dated 5th July 2023 declaring the child herein as being free for adoption. The certificate bears the serial number 002371.
6. The Applicant filed together with her application a Chamber Summons application dated 19th September 2024, vide which she sought to have Alfred Mayieka Agwata appointed as a guardian ad litem in respect of these proceedings and for the said person to conduct a home visit and to prepare and file the requisite report. She also sought an order directing the County Director of Children's Services, through the Children Department Voi, to prepare the relevant report concerning this Adoption and submit the same to the Deputy Registrar of this Court within 30 days of the date of the order.
7. I heard the Chamber Summons application on 9th October 2024. Being satisfied with the suitability of Mr Alfred Mayieka Agwata to be the guardian ad litem in respect of these proceedings, I appointed him as such and ordered that both he and the County Director of Children Services file their respective reports within 30 days of the said date. I slated the Originating Summons for hearing on 13th November 2024.
8. Both filed their respective reports. The reports are undated. I have considered the said reports in this decision.
9. I heard the matter on 13th November and 4th December 2024. I shall briefly set out the testimonies of the parties below.
10. The first Witness was Mr Kenneth Mbito Mvurya. Mr Mvurya is the County Coordinator of Children Services Taita Taveta County. He testified that upon receipt of the Court order, he visited the Applicant’s home on 7th November 2024. He found that the Applicant’s home environment was conducive to the growth and well-being of the child. He further testified that the child had bonded well with the proposed adoptive parent. The witness produced a report he had written recommending the adoption.
11. Mr Joshua Mwalimu Wambua was the second Witness. He is a social worker with Little Angels Network. He testified that his organization assessed the applicant and the child for adoption. The report vide which the child was freed is dated 5th July 2023. The certificate freeing the child for adoption bears the serial number 002371, while the report assessing the applicant is dated 3rd June 2021. Mr. Wambua testified that his organization recommended the adoption as it would be in the child's best interest.
12. The third witness was Matildah Wavua Mwaluandu. Ms Mwaluandu is the Applicant in this matter. The Applicant testified that she resides in Mlechi, Mbale. She is a businesswoman. She wishes to adopt the child, the subject of these proceedings. She had tried to have a child of her own without success. She is aware that an adoption order is permanent and that the child would have the right to inherit from her estate. She testified that she had appointed her brother as the legal guardian with his wife to secure the child’s rights. She testified that the child would be called Joy Wakio Wavua if the application was approved.
13. The last Witness was Alfred Mayieka Agwata. Mr Agwata is the court-appointed guardian ad litem. Mr Agwata testified that upon appointment, he visited the applicant at her home to satisfy himself that the home environment was sound. It was his testimony that the Applicant lives in a three-bedroom house with a shop. In his report, the guardian ad litem reported that the Applicant and the child had bonded well and that the child called the Applicant “Mum”. He recommended the adoption.
14. I have considered the application herein, the documents in support thereof and 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.
15. I have already set out the circumstances under which the child was found. The child was abandoned when she was about 6 months old. Nobody has come forward to claim her. 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.”
16. Regarding the baby’s nationality, the evidence adduced shows that she was found abandoned around 6 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 presumed to be a Kenyan citizen by birth.
17. 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.
18. Concerning the Applicant’s suitability, she is a Kenyan citizen aged 44 years at the time of this judgment, which places her 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 Applicant has the means to take care of the child. She has no criminal records. 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.
19. Consequently, I do not doubt that she meets the requirements to adopt the baby. 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.”
20. 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.
21. 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.”
22. The child herein was found abandoned. She, therefore, needs basic necessities like food, shelter, education and clothing. She has fully integrated with the 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.”
23. In my view, the application has merit. Consequently, I issue the following orders:-
1. I declare the child, Baby Miriam Gabrielle, a Kenyan citizen by birth;
2. The consent of the biological parents of the child to the adoption is hereby dispensed with;
3. The Applicant, Matildah Wavua Mwaluandu, is hereby authorised to adopt Baby Miriam Gabrielle;
4. Baby Miriam Gabrielle shall henceforth be known as Joy Wakio Wavua;
5. I appoint Stephen Mwakaba Mwaluandu and Caren Jepkorir Kigen as the joint Legal Guardians of Joy Wakio Wavua and entrust them with the responsibility of taking care of her in the event the Applicant becomes deceased or is otherwise permanently unable to take care of the said child before she 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 Joy Wakio Wavua as being 28th August 2021 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022.
7. The guardian ad litem, Alfred Mayieka Agwata, is hereby discharged.
24. I make no orders regarding costs as this is a non-contentious adoption cause.
25. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually via Microsoft TEAMS.