1. Vide an Originating Summons dated 17th September 2024, Nancy Nanzighe Simba, whom I shall hereafter refer to as 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 be pleased to declare the child, Baby Gideon Tumaini, 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 requirement of the consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;
(3) The Applicant Nancy Nanzighe Simba be authorized to adopt Baby Gideon Tumaini;
(4) Upon the making of the adoption order the child to be known as Gideon Mecha Simba;
(5) Upon the making of the adoption order, Joan Kemunto Simba and Annette Namshitu Okari be appointed as Legal Guardian 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 date of birth of the child as 23rd December 2016 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
(7) The cost of this application be costs of the cause.
2. The applicant is a widow. She was born on 18th April 1969. Her husband died in 1996 of kidney failure. At the time of his demise, they had one issue: Annette Namshitu Okari, who, at the time the application was filed, was 28 years old. The applicant is of the African race, has a sound mind, professes a Christian religion, and resides in Jomvu Mikanjuni, Mombasa. Ms Simba does not have a criminal record and describes herself in her statement as being financially stable.
3. According to the letter written by the OCS Kilifi Police Station dated 19th July 2022, the child, the subject of these adoption proceedings, was found having been abandoned at Club Mnazi at Pale Pale, Bomani in Junju location by a good Samaritan called Benta Atieno. The identity of his mother is unknown. The matter was reported to Kilifi Police Station vide OB No 65/28/12/2016. Efforts to trace his parents haven’t borne fruit to date. His birth certificate, entry number 0142004121, gives his date of birth as 23rd December 2016 and does not state who his mother and or father is.
4. The child was admitted to Lifespring Children Centre on 29th December 2016. He was committed to the said institution on 10th February 2023 vide Protection & Care Cause No MCPE 006 of 2023 for a period of 1 year. He was declared as being free for adoption on 20th July 2023. The certification of Declaring a Child Free for Adoption, dated 20th July 2023, bears the serial number 0708 and was issued by Buckner Kenya Adoption Services.
5. The adoption agency also assessed the suitability of the prospective adoptive mother. It found her to be a suitable adoptive parent. The report to that effect is dated 9th February 2024.
6. The Applicant filed together with the Originating Summons a Chamber Summons applicant dated 17th September 2024, vide which she sought to have Roseline Anyango Ochieng of Jomvu Girls, Mombasa, appointed as a guardian ad litem and for the County Director of Children Services, through the Children Department Mombasa ordered to conduct a social enquiry and to prepare and file the requisite report.
7. I heard the said Chamber Summons application on 9th October 2024. Being satisfied that Roseline Anyango Ochieng was suitable, I appointed her as a guardian ad litem. I directed her to conduct a home visit and to prepare and file the requisite report within 30 days of the said date. I also ordered the County Director of Children's Services to conduct a social enquiry and to prepare and file the requisite report within a similar report.
8. The Originating Summons was heard on 13th November and 4th December 2024. A total of 5 Witnesses testified. I shall refer to their testimonies below.
9. The fast Witness was Alexander Malala Libendi. He is a social worker with Buckner Kenya Adoption Society. Mr Libendi testified that they assessed the Applicant and that she was approved by the Case Committee of Buckner Kenya Adoption Society on 18th January 2022. The child was freed for adoption on 20th July 2023. The said child was received into the care and custody of the applicant on 14th August 2023. He testified that even after custody of the child was given to the Applicant, follow-up was done, which showed that the child was thriving. He recommended the adoption as it would be in the child's best interest.
10. The second witness was the applicant. Ms Simba testified that she is a businesswoman. She resides at Jomvu Mikanjuni. It was her testimony that she wished to adopt the child as her only child, a daughter was now an adult and that she had time and resources to take care of an adoptive child. She stated that she understood the consequences of adoption. It was her testimony that members of her family have adopted children. Ms Simba intends, if the application is successful, to bring up the child in her catholic faith. She proposes to call him Gideon Mecha Simba if the application is successful.
11. The third Witness was Roseline Anyango Ochieng. She too resides at Jomnvu Mikanjuni. Ms. Ochieng works for St. John the Baptist Catholic Church at Jomvu and is the court-appointed guardian ad litem. She testified that she visited the home of the applicant 3 times and observed that Baby Gideon plays well with the other children and is well-fed. The home environment is good Ms. Ochieng produced her report in which she recommended the adoption.
12. Ms Annette Namshitu Okari was the fourth witness. Ms Okari is the daughter of the adoptive parent/applicant. Ms Okari testified that she was aware of her mother’s proposal to adopt the child and was agreeable to it. She is aware that the adoptive child will if the application is allowed, have an equal right with her to inherit the properties of her mother. She consented to the adoption.
13. The last Witness was Ms Njeri Mwangi of the Children's Department Mombasa. Ms Mwangi is a Children's Officer. She testified that upon receipt of the Court order, her office conducted a home visit on 18th November 2024, which was filed on 25th November 2024. The report indicated that the Applicant is windowed with one daughter. The home environment was positive. In her view, the Applicant met all the legal requirements, and for that reason, she recommended the adoption.
14. 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.
15. I have already set out the circumstances under which the child was found. The child was abandoned on 28th December 2016, about 5 days 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.”
16. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned approximately 5 days 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.
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 55 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 record. Since the placement of the minor into her custody, the child has fully bonded with her. She understands the consequences of adoption and knows that once an adoption order is made, it is permanent.
19. Consequently, I do not doubt that the Applicant meets 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.”
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. He, therefore, needs basic necessities like food, shelter, education and clothing. He 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 Gideon Tumaini, 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, Nancy Nanzighe Simba, is hereby authorised to adopt Baby Gideon Tumaini;
4. Baby Gideon Tumaini shall henceforth be known as Gideon Mecha Simba;
5. I appoint Joan Kemunto Simba and Annette Namshitu Okari as the joint Legal Guardians of Gideon Mecha Simba and entrust them with the responsibility of taking care of him in the event the Applicant becomes deceased or is 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 Gideon Mecha Simba as being 23rd December 2016 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
7. The guardian ad litem herein, Roseline Anyango Ochieng, is hereby discharged.
24. I make no orders as to 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 be pleased to declare the child, Baby Gideon Tumaini, 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 requirement of the consent to the adoption as required by the provisions of section 186 of the Children Act, 2022;
(3) The Applicant Nancy Nanzighe Simba be authorized to adopt Baby Gideon Tumaini;
(4) Upon the making of the adoption order the child to be known as Gideon Mecha Simba;
(5) Upon the making of the adoption order, Joan Kemunto Simba and Annette Namshitu Okari be appointed as Legal Guardian 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 date of birth of the child as 23rd December 2016 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
(7) The cost of this application be costs of the cause.
2. The applicant is a widow. She was born on 18th April 1969. Her husband died in 1996 of kidney failure. At the time of his demise, they had one issue: Annette Namshitu Okari, who, at the time the application was filed, was 28 years old. The applicant is of the African race, has a sound mind, professes a Christian religion, and resides in Jomvu Mikanjuni, Mombasa. Ms Simba does not have a criminal record and describes herself in her statement as being financially stable.
3. According to the letter written by the OCS Kilifi Police Station dated 19th July 2022, the child, the subject of these adoption proceedings, was found having been abandoned at Club Mnazi at Pale Pale, Bomani in Junju location by a good Samaritan called Benta Atieno. The identity of his mother is unknown. The matter was reported to Kilifi Police Station vide OB No 65/28/12/2016. Efforts to trace his parents haven’t borne fruit to date. His birth certificate, entry number 0142004121, gives his date of birth as 23rd December 2016 and does not state who his mother and or father is.
4. The child was admitted to Lifespring Children Centre on 29th December 2016. He was committed to the said institution on 10th February 2023 vide Protection & Care Cause No MCPE 006 of 2023 for a period of 1 year. He was declared as being free for adoption on 20th July 2023. The certification of Declaring a Child Free for Adoption, dated 20th July 2023, bears the serial number 0708 and was issued by Buckner Kenya Adoption Services.
5. The adoption agency also assessed the suitability of the prospective adoptive mother. It found her to be a suitable adoptive parent. The report to that effect is dated 9th February 2024.
6. The Applicant filed together with the Originating Summons a Chamber Summons applicant dated 17th September 2024, vide which she sought to have Roseline Anyango Ochieng of Jomvu Girls, Mombasa, appointed as a guardian ad litem and for the County Director of Children Services, through the Children Department Mombasa ordered to conduct a social enquiry and to prepare and file the requisite report.
7. I heard the said Chamber Summons application on 9th October 2024. Being satisfied that Roseline Anyango Ochieng was suitable, I appointed her as a guardian ad litem. I directed her to conduct a home visit and to prepare and file the requisite report within 30 days of the said date. I also ordered the County Director of Children's Services to conduct a social enquiry and to prepare and file the requisite report within a similar report.
8. The Originating Summons was heard on 13th November and 4th December 2024. A total of 5 Witnesses testified. I shall refer to their testimonies below.
9. The fast Witness was Alexander Malala Libendi. He is a social worker with Buckner Kenya Adoption Society. Mr Libendi testified that they assessed the Applicant and that she was approved by the Case Committee of Buckner Kenya Adoption Society on 18th January 2022. The child was freed for adoption on 20th July 2023. The said child was received into the care and custody of the applicant on 14th August 2023. He testified that even after custody of the child was given to the Applicant, follow-up was done, which showed that the child was thriving. He recommended the adoption as it would be in the child's best interest.
10. The second witness was the applicant. Ms Simba testified that she is a businesswoman. She resides at Jomvu Mikanjuni. It was her testimony that she wished to adopt the child as her only child, a daughter was now an adult and that she had time and resources to take care of an adoptive child. She stated that she understood the consequences of adoption. It was her testimony that members of her family have adopted children. Ms Simba intends, if the application is successful, to bring up the child in her catholic faith. She proposes to call him Gideon Mecha Simba if the application is successful.
11. The third Witness was Roseline Anyango Ochieng. She too resides at Jomnvu Mikanjuni. Ms. Ochieng works for St. John the Baptist Catholic Church at Jomvu and is the court-appointed guardian ad litem. She testified that she visited the home of the applicant 3 times and observed that Baby Gideon plays well with the other children and is well-fed. The home environment is good Ms. Ochieng produced her report in which she recommended the adoption.
12. Ms Annette Namshitu Okari was the fourth witness. Ms Okari is the daughter of the adoptive parent/applicant. Ms Okari testified that she was aware of her mother’s proposal to adopt the child and was agreeable to it. She is aware that the adoptive child will if the application is allowed, have an equal right with her to inherit the properties of her mother. She consented to the adoption.
13. The last Witness was Ms Njeri Mwangi of the Children's Department Mombasa. Ms Mwangi is a Children's Officer. She testified that upon receipt of the Court order, her office conducted a home visit on 18th November 2024, which was filed on 25th November 2024. The report indicated that the Applicant is windowed with one daughter. The home environment was positive. In her view, the Applicant met all the legal requirements, and for that reason, she recommended the adoption.
14. 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.
15. I have already set out the circumstances under which the child was found. The child was abandoned on 28th December 2016, about 5 days 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.”
16. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned approximately 5 days 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.
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 55 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 record. Since the placement of the minor into her custody, the child has fully bonded with her. She understands the consequences of adoption and knows that once an adoption order is made, it is permanent.
19. Consequently, I do not doubt that the Applicant meets 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.”
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. He, therefore, needs basic necessities like food, shelter, education and clothing. He 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 Gideon Tumaini, 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, Nancy Nanzighe Simba, is hereby authorised to adopt Baby Gideon Tumaini;
4. Baby Gideon Tumaini shall henceforth be known as Gideon Mecha Simba;
5. I appoint Joan Kemunto Simba and Annette Namshitu Okari as the joint Legal Guardians of Gideon Mecha Simba and entrust them with the responsibility of taking care of him in the event the Applicant becomes deceased or is 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 Gideon Mecha Simba as being 23rd December 2016 in the Adopted Children Register as provided for by section 201 of the Children Act, 2022; and
7. The guardian ad litem herein, Roseline Anyango Ochieng, is hereby discharged.
24. I make no orders as to 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.