1. Before the court is the Originating Summons dated 17th May 2024 by which the Applicant seeks the following orders: -
i. That the Applicant, PAULINE WANJIKU MWANGI be allowed to adopt the child currently identified as BABY KATRINA JOY.
ii. That henceforth, the child be renamed as IMANI KATRINA MUMBI MWANGI.
iii. The child’s date and place of birth be declared to be 27th November 2022 in Kiambu County
iv. That the child be presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof including issuance of a post adoption Certificate of Birth and a Passport.
v. That PATRICK BUTHI MWANGI and MERCY WAMBUI NDUN’GU be appointed Legal Guardians of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
vi. That the guardian ad litem be discharged.
vii. That the Registrar General be directed to make appropriate entries in the Adopted Children’s Register.
viii. That this court do issue such further orders as are in the interest of justice.
2. The application is supported by the Applicant’s Statement of 17th May 2024 as well as the Supporting Affidavit of even date sworn by the Applicant. The Application was canvassed by way of viva voce evidence on the virtual platform on 11th July 2024.
3. At the hearing of the Summons, the Applicant testified in support of her application that her main motivation for this application for adoption stems from her desire to be a mother and her love for children. That it is also her wish to provide a home and support a needy child.
4. In her statement of 17th May 2024 in support of the application, the Applicant stated that she single and with no biological child of her own.
5. The Applicant confirmed to court that she understands the legal implications of an adoption order and therefore undertook 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’s 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.”
Eligibility of the Child
7. The child who is the subject of the present adoption proceedings subject is believed to have been born on 27th November 2022 at Ruiru, Kiambu County. The child was on 3rd December 2022 discovered abandoned by the mother in a matatu within mama-shop area in Ruiru. The child was thereafter rescued by a good Samaritan and a report in that regard made to Ruiru Police Station on 5th December 2022 under OB No. 54/03/11/2022.
8. Upon rescue, the police referred the matter to the Ruiru Sub-County Children’s Officer who on 5th December 2022 secured an admission for the baby to Happy Life Children’s Home pending further investigations.
9. On 2nd June 2022, following an application by the Ruiru Sub-County Children’s Officer, the Children’s Court at Ruiru in Protection and Care Case No. E595/2022, committed the child to Happy Life Children’s Home for care and protection for a period of one year. The Committal Order by the Court (Annex “PM 23”) was attached to the Summons.
10. Buckner Kenya Adoption Services, a registered Adoption Agency, sat and deliberated on the applicants’ application for adoption and declared the child free for adoption on 8th December 2023. The Society signed and issued Certificate No. 0762 of even date, declaring the child free for adoption.
11. Vide Foster Care Agreement of 22nd January 2024 between the Applicant and Happy Life Children Home, the child was placed in the custody of the Applicant for mandatory bonding prior to adoption. The Applicant has since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 31st October 2023 (Annex “PM 24”) from the OCS, Ruiru Police Station.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged one year five months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“A child found in Kenya who is or appears to be less than eight years of age and whose nationality and parents are not known is presumed to be a citizen of Kenya \"
16. The subject child was abandoned within Ruiru area, Kiambu County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth.
The Applicant
17. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is suitable adoptive parent.
18. The applicant is female adult Kenyan citizen having been born 1973 as evidenced by a copy of her national identity card which was attached as annex “PM4” to the summons. The Applicant who is currently single has never been married and has no biological child of her own.
19. In support of her application, the Applicant states that for a long time she has harboured the interest of adopting a child in need. A home visit report by the Directorate of Children Services reveals that the Applicant is currently employed as a dentist and also a business lady. That she is possessed of sufficient resources to take care of the child.
20. At the hearing of the application, the Applicant also testified and confirmed to court that she has sufficient means to provide for the child. She attached as annex (“PM 8A-C”), copies of her bank statements evidencing her income as well as copies of titles to properties she currently owns.
21. A pre-placement report dated 29th March 2023 by Buckner Kenya Adoption Society, the adoption agency in this matter (“PM 16”), indicated that the Applicant has sufficient net income and assets to cater for the minor.
22. On review of the evidence on record, I am satisfied that the Applicant is generally financially secure and is capable of providing or the needs of the child. Concerning religion, the applicant deponed that she is a Christian and that she intends to raise the child in the Christian faith. In support of this averment, the Applicant annexed a letter of religious affiliation dated 29th November 2022 from Apostle James N. Mbugua of Fountain Gate Church, Nairobi.
23. The Applicant was examined by a doctor and was found to be mentally and physically fit (Annex “PM 9A &B”) to undertake the adoption. The Applicant equally attached a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex “PM 10”) evidencing that she is of no criminal record.
24. The Applicant informed court that her family and friends are aware of these adoption proceedings and supports the same. In that regard, the Applicant attached a letter of recommendation from her younger brother Albert Ndirangu as well as her long-term friend Magaret Kaburu (“PM 12A&B) showing their support for the proposed adoption.
25. The applicant has appointed PATRICK BUTHI MWANGI and MERCY WAMBUI NDUNG’U who are the Applicant’s brother and sister-in-law respectively, to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardians have each signed a consent and also sworn affidavit dated 9th May 2024 (annex “PM 13A-D”) indicating their willingness to act as legal guardians for the child.
26. In the premises, I am satisfied that the Applicant is a suitable adoptive parent for the minor.
27. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are 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. This is a child who was abandoned after birth. She faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
29. The child has lived with the applicant since 22nd January 2024. She has bonded well with the Applicant whom she views as her parent. I was able to see the child online virtually at the hearing of the application. She was a healthy and happy baby girl and was very much at ease in the company of the Applicant.
30. A home visit was conducted by Guardian ad litem and the Directorate of Children Services reveals that the applicant lives in an own spacious three bedroomed house in a gated community within Kiambu County and that the home is furnished with modern equipment and offers a comfortable place to raise the child, is accessible and close to amenities like schools and hospitals which are necessary facilities for the child.
31. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
32. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, allow the application and hereby make the following orders: -
i. That the Applicant, PAULINE WANJIKU MWANGI be and is hereby allowed to adopt the child currently identified as BABY KATRINA JOY.
ii. That henceforth, the child be and is hereby renamed as IMANI KATRINA MUMBI MWANGI.
iii. The child’s date and place of birth be and are hereby declared to be 27th November 2022 in Kiambu County respectively.
iv. That the child be is hereby presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof including issuance of a post adoption Certificate of Birth and a Passport.
v. That PATRICK BUTHI MWANGI and MERCY WAMBUI NDUN’GU be and are hereby appointed Legal Guardians of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
vi. That the Registrar General be directed to make appropriate entries in the Adopted Children’s Register.
vii. That the guardian ad litem be discharged.
33. 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. Kimenyi………. for the Applicant
i. That the Applicant, PAULINE WANJIKU MWANGI be allowed to adopt the child currently identified as BABY KATRINA JOY.
ii. That henceforth, the child be renamed as IMANI KATRINA MUMBI MWANGI.
iii. The child’s date and place of birth be declared to be 27th November 2022 in Kiambu County
iv. That the child be presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof including issuance of a post adoption Certificate of Birth and a Passport.
v. That PATRICK BUTHI MWANGI and MERCY WAMBUI NDUN’GU be appointed Legal Guardians of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
vi. That the guardian ad litem be discharged.
vii. That the Registrar General be directed to make appropriate entries in the Adopted Children’s Register.
viii. That this court do issue such further orders as are in the interest of justice.
2. The application is supported by the Applicant’s Statement of 17th May 2024 as well as the Supporting Affidavit of even date sworn by the Applicant. The Application was canvassed by way of viva voce evidence on the virtual platform on 11th July 2024.
3. At the hearing of the Summons, the Applicant testified in support of her application that her main motivation for this application for adoption stems from her desire to be a mother and her love for children. That it is also her wish to provide a home and support a needy child.
4. In her statement of 17th May 2024 in support of the application, the Applicant stated that she single and with no biological child of her own.
5. The Applicant confirmed to court that she understands the legal implications of an adoption order and therefore undertook 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’s 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.”
Eligibility of the Child
7. The child who is the subject of the present adoption proceedings subject is believed to have been born on 27th November 2022 at Ruiru, Kiambu County. The child was on 3rd December 2022 discovered abandoned by the mother in a matatu within mama-shop area in Ruiru. The child was thereafter rescued by a good Samaritan and a report in that regard made to Ruiru Police Station on 5th December 2022 under OB No. 54/03/11/2022.
8. Upon rescue, the police referred the matter to the Ruiru Sub-County Children’s Officer who on 5th December 2022 secured an admission for the baby to Happy Life Children’s Home pending further investigations.
9. On 2nd June 2022, following an application by the Ruiru Sub-County Children’s Officer, the Children’s Court at Ruiru in Protection and Care Case No. E595/2022, committed the child to Happy Life Children’s Home for care and protection for a period of one year. The Committal Order by the Court (Annex “PM 23”) was attached to the Summons.
10. Buckner Kenya Adoption Services, a registered Adoption Agency, sat and deliberated on the applicants’ application for adoption and declared the child free for adoption on 8th December 2023. The Society signed and issued Certificate No. 0762 of even date, declaring the child free for adoption.
11. Vide Foster Care Agreement of 22nd January 2024 between the Applicant and Happy Life Children Home, the child was placed in the custody of the Applicant for mandatory bonding prior to adoption. The Applicant has since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 31st October 2023 (Annex “PM 24”) from the OCS, Ruiru Police Station.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged one year five months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“A child found in Kenya who is or appears to be less than eight years of age and whose nationality and parents are not known is presumed to be a citizen of Kenya \"
16. The subject child was abandoned within Ruiru area, Kiambu County within the Republic of Kenya. She is therefore presumed to be a Kenyan citizen by birth.
The Applicant
17. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicant is suitable adoptive parent.
18. The applicant is female adult Kenyan citizen having been born 1973 as evidenced by a copy of her national identity card which was attached as annex “PM4” to the summons. The Applicant who is currently single has never been married and has no biological child of her own.
19. In support of her application, the Applicant states that for a long time she has harboured the interest of adopting a child in need. A home visit report by the Directorate of Children Services reveals that the Applicant is currently employed as a dentist and also a business lady. That she is possessed of sufficient resources to take care of the child.
20. At the hearing of the application, the Applicant also testified and confirmed to court that she has sufficient means to provide for the child. She attached as annex (“PM 8A-C”), copies of her bank statements evidencing her income as well as copies of titles to properties she currently owns.
21. A pre-placement report dated 29th March 2023 by Buckner Kenya Adoption Society, the adoption agency in this matter (“PM 16”), indicated that the Applicant has sufficient net income and assets to cater for the minor.
22. On review of the evidence on record, I am satisfied that the Applicant is generally financially secure and is capable of providing or the needs of the child. Concerning religion, the applicant deponed that she is a Christian and that she intends to raise the child in the Christian faith. In support of this averment, the Applicant annexed a letter of religious affiliation dated 29th November 2022 from Apostle James N. Mbugua of Fountain Gate Church, Nairobi.
23. The Applicant was examined by a doctor and was found to be mentally and physically fit (Annex “PM 9A &B”) to undertake the adoption. The Applicant equally attached a copy of police clearance certificate from the Directorate of Criminal Investigations (Annex “PM 10”) evidencing that she is of no criminal record.
24. The Applicant informed court that her family and friends are aware of these adoption proceedings and supports the same. In that regard, the Applicant attached a letter of recommendation from her younger brother Albert Ndirangu as well as her long-term friend Magaret Kaburu (“PM 12A&B) showing their support for the proposed adoption.
25. The applicant has appointed PATRICK BUTHI MWANGI and MERCY WAMBUI NDUNG’U who are the Applicant’s brother and sister-in-law respectively, to be the legal guardians for the child in the event of incapacity before the child is of majority age. The proposed legal guardians have each signed a consent and also sworn affidavit dated 9th May 2024 (annex “PM 13A-D”) indicating their willingness to act as legal guardians for the child.
26. In the premises, I am satisfied that the Applicant is a suitable adoptive parent for the minor.
27. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are 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. This is a child who was abandoned after birth. She faced an uncertain future living in a children’s home. This adoption in my view will give the child the opportunity to be raised in a loving and stable home environment.
29. The child has lived with the applicant since 22nd January 2024. She has bonded well with the Applicant whom she views as her parent. I was able to see the child online virtually at the hearing of the application. She was a healthy and happy baby girl and was very much at ease in the company of the Applicant.
30. A home visit was conducted by Guardian ad litem and the Directorate of Children Services reveals that the applicant lives in an own spacious three bedroomed house in a gated community within Kiambu County and that the home is furnished with modern equipment and offers a comfortable place to raise the child, is accessible and close to amenities like schools and hospitals which are necessary facilities for the child.
31. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
32. In the final analysis I am satisfied that this adoption serves the best interest of the subject child. Consequently, allow the application and hereby make the following orders: -
i. That the Applicant, PAULINE WANJIKU MWANGI be and is hereby allowed to adopt the child currently identified as BABY KATRINA JOY.
ii. That henceforth, the child be and is hereby renamed as IMANI KATRINA MUMBI MWANGI.
iii. The child’s date and place of birth be and are hereby declared to be 27th November 2022 in Kiambu County respectively.
iv. That the child be is hereby presumed to be a Kenyan Citizen by birth; and consequently, be entitled to all the rights and benefits in respect thereof including issuance of a post adoption Certificate of Birth and a Passport.
v. That PATRICK BUTHI MWANGI and MERCY WAMBUI NDUN’GU be and are hereby appointed Legal Guardians of the child, in the event that the Applicant herein is incapacitated or in any way unable to discharge her parental obligations.
vi. That the Registrar General be directed to make appropriate entries in the Adopted Children’s Register.
vii. That the guardian ad litem be discharged.
33. 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. Kimenyi………. for the Applicant