1. The duty of a court, among other stakeholders in matters of children, need not be gainsaid and many, are the decisions which have distilled the principle of best interest of children. Whereas I may not be able to enlist them exhaustively here, it is apt to set out some local and persuasive decisions which will be a guide even as I dive into the factual matrix of this matter.
2. In Weller & Others Vs Associated Newspapers Ltd {2015} ALL ER (D) 194, the best interest of children may be held in a variety of different contexts for example the balancing exercise must always be undertaken in children’s cases as in adult cases although a child’s right is not a trump card in the balancing exercise, the primacy of the best interests of a child means that, where a child interest would be adverse by affected, they must be given considerable weight.
3. In the House of Lords decision in Re C (A Minor) (Adoption Order: Conditions) [1989] AC 1 , Lord Ackner stated in respect to post adoption contact, cases rightly stress that in normal circumstances, it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so, would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. When no agreement is forthcoming, the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access to some other machinery, such as wardship. To do otherwise, would be merely inviting future and almost immediate litigation stopped.
4. The United Kingdom Supreme Court in Re B (A Child) [2013] UKSC 33, Baroness Hale said that, the test for severing the relationship between parent and child is very strict. Only in exceptional cases and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.
5. Justice Hale in Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760 , said that the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children, unless there are cogent reasons to the contrary.
6. The Children’s Act the Geneva Declaration of the Rights of the Child {1924} in Article (2) provides that the child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of Laws for this purpose, the best interest of the child shall be the parent consideration.
7. The best interest of the child’s right is a principle derived from Article 3 of the United Nations Convention on the rights of the child provides that in all actions concerning children whether undertaken by the public or private social welfare institutions, courts of law administrative authorities of legislative bodies, the best interests of the child, shall be primary consideration.
8. Back home, in the case of Re B(Baby)[2018]eKLR, the court stated that that the purpose of Kenya’s Constitution and Children 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 provision is of the best interest of that very child. It is that family unit that the constitution contemplates under Article 45 which also has to take responsibilities in fulfilling the obligations enjoined in Article 53 of the same Constitution.
9. Section 185 and Section 186 of the Children Act, 2022 set out the criteria of the children eligible to be adopted and the threshold to be met by the adoptive parents; (1) An adoption order may be made upon the application of a sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants has attained the age of twenty-five years and is at least twenty-one years old than the child but has not attained the age of sixty- five years or is a relative of the child or is the mother of the child. Notwithstanding anything contained in this section the Court may at its sole discretion decline to make an adoption order in favour of any person or persons if the Court is of the view that it is not in the best interest of the child to make the order.
10. In the Originating Summons dated 13th October, 2025, the applicant seeks an Adoption Order under 158 of the Children Act, 2022;
a. That Jackline Rigii be appointed as Guardian ad litem herein.
b. That the Applicants Peter Rigii Gaitho & Lydia Wanjiku Rigii be authorized to adopt Baby Alex Lewis Muriu Rigii.
c. That the honourable court be pleased to order that the appropriate adoption certificate be issued to the Applicant herein.
d. That the honourable court does dispense with the parent’s consent as the only known parent Teresia Wangari Muriu is deceased.
11. The applicant has set out the grounds in the statement in support of the application for Adoption Order which I summarize as hereunder;
a. The applicants say that they are married and that they had applied for adoption of the child at Change Trust and the application was approved on 10th July 2025.
b. The applicant states that the child is a nephew of Lydia Wanjiku Rigii who has been taking care of the child since the year 2012 when the biological mother Teresia Wangari Muriu passed on as evidenced by a death certificate.
c. The applicants have annexed a Police Clearance Certificate and marked it as AR4 to show that they don’t have any criminal records.
d. That attached to the application are the consent to act as guardian, affidavit of guardian and affidavit of fitness of the proposed guardian to demonstrate that all the relevant bodies and persons have positively identified the applicants as fit to adopt the child in this matter.
12. The court has perused the necessary attachments to this adoption and especially a detailed report from Kenya Children’s home, a certificate declaration a child free for adoption, a consent by Guardian ad litem, a certificate of fitness of the proposed guardian ad litem, medical records and financial statements. They all favour the adoption of the baby herein and it is in the interest of the baby that adoption is granted as proposed.
13. What more, shall the court expect.
14. Taking all these reports and attestations by the applicants, I must reiterate that the constitutional and internationally applicable principle of best interest of a child is the centerpiece that runs through in these proceedings. Consequently, I allow the prayers sought in the Originating Summons dated 13th December 2025, and order as follows:
a. That Jackline Rigii be appointed as guardian ad litem herein.
b. The Applicants Peter Rigii Gaitho & Lydia Wanjiku Rigii are hereby authorized to adopt Baby Alex Lewis Muriu Rigii.
c. This court directs that the appropriate Adoption Certificate be issued to the Applicants herein.
d. The parent’s consent is hereby dispensed as the only known parent Teresia Wangari Muriu, is deceased.
Delivered virtually on the 17th September, 2026 in the presence of the parties and Sagasi CA.
2. In Weller & Others Vs Associated Newspapers Ltd {2015} ALL ER (D) 194, the best interest of children may be held in a variety of different contexts for example the balancing exercise must always be undertaken in children’s cases as in adult cases although a child’s right is not a trump card in the balancing exercise, the primacy of the best interests of a child means that, where a child interest would be adverse by affected, they must be given considerable weight.
3. In the House of Lords decision in Re C (A Minor) (Adoption Order: Conditions) [1989] AC 1 , Lord Ackner stated in respect to post adoption contact, cases rightly stress that in normal circumstances, it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so, would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. When no agreement is forthcoming, the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access to some other machinery, such as wardship. To do otherwise, would be merely inviting future and almost immediate litigation stopped.
4. The United Kingdom Supreme Court in Re B (A Child) [2013] UKSC 33, Baroness Hale said that, the test for severing the relationship between parent and child is very strict. Only in exceptional cases and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.
5. Justice Hale in Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760 , said that the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children, unless there are cogent reasons to the contrary.
6. The Children’s Act the Geneva Declaration of the Rights of the Child {1924} in Article (2) provides that the child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of Laws for this purpose, the best interest of the child shall be the parent consideration.
7. The best interest of the child’s right is a principle derived from Article 3 of the United Nations Convention on the rights of the child provides that in all actions concerning children whether undertaken by the public or private social welfare institutions, courts of law administrative authorities of legislative bodies, the best interests of the child, shall be primary consideration.
8. Back home, in the case of Re B(Baby)[2018]eKLR, the court stated that that the purpose of Kenya’s Constitution and Children 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 provision is of the best interest of that very child. It is that family unit that the constitution contemplates under Article 45 which also has to take responsibilities in fulfilling the obligations enjoined in Article 53 of the same Constitution.
9. Section 185 and Section 186 of the Children Act, 2022 set out the criteria of the children eligible to be adopted and the threshold to be met by the adoptive parents; (1) An adoption order may be made upon the application of a sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants has attained the age of twenty-five years and is at least twenty-one years old than the child but has not attained the age of sixty- five years or is a relative of the child or is the mother of the child. Notwithstanding anything contained in this section the Court may at its sole discretion decline to make an adoption order in favour of any person or persons if the Court is of the view that it is not in the best interest of the child to make the order.
10. In the Originating Summons dated 13th October, 2025, the applicant seeks an Adoption Order under 158 of the Children Act, 2022;
a. That Jackline Rigii be appointed as Guardian ad litem herein.
b. That the Applicants Peter Rigii Gaitho & Lydia Wanjiku Rigii be authorized to adopt Baby Alex Lewis Muriu Rigii.
c. That the honourable court be pleased to order that the appropriate adoption certificate be issued to the Applicant herein.
d. That the honourable court does dispense with the parent’s consent as the only known parent Teresia Wangari Muriu is deceased.
11. The applicant has set out the grounds in the statement in support of the application for Adoption Order which I summarize as hereunder;
a. The applicants say that they are married and that they had applied for adoption of the child at Change Trust and the application was approved on 10th July 2025.
b. The applicant states that the child is a nephew of Lydia Wanjiku Rigii who has been taking care of the child since the year 2012 when the biological mother Teresia Wangari Muriu passed on as evidenced by a death certificate.
c. The applicants have annexed a Police Clearance Certificate and marked it as AR4 to show that they don’t have any criminal records.
d. That attached to the application are the consent to act as guardian, affidavit of guardian and affidavit of fitness of the proposed guardian to demonstrate that all the relevant bodies and persons have positively identified the applicants as fit to adopt the child in this matter.
12. The court has perused the necessary attachments to this adoption and especially a detailed report from Kenya Children’s home, a certificate declaration a child free for adoption, a consent by Guardian ad litem, a certificate of fitness of the proposed guardian ad litem, medical records and financial statements. They all favour the adoption of the baby herein and it is in the interest of the baby that adoption is granted as proposed.
13. What more, shall the court expect.
14. Taking all these reports and attestations by the applicants, I must reiterate that the constitutional and internationally applicable principle of best interest of a child is the centerpiece that runs through in these proceedings. Consequently, I allow the prayers sought in the Originating Summons dated 13th December 2025, and order as follows:
a. That Jackline Rigii be appointed as guardian ad litem herein.
b. The Applicants Peter Rigii Gaitho & Lydia Wanjiku Rigii are hereby authorized to adopt Baby Alex Lewis Muriu Rigii.
c. This court directs that the appropriate Adoption Certificate be issued to the Applicants herein.
d. The parent’s consent is hereby dispensed as the only known parent Teresia Wangari Muriu, is deceased.
Delivered virtually on the 17th September, 2026 in the presence of the parties and Sagasi CA.