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JudgmentR.N.K VS5 min read

R.N.K VS

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ADOPTION CASE NO. E029 OF 2024

IN THE MATTER OF THE CHILDREN’S ACT, 2022

AND

IN THE MATTER OF S.N (MINOR)

AND

 IN THE MATTER OF AN APPLICATION FOR KINSHIP ADOPTION

AND

IN THE MATTER OF

RK ................................................................APPLICANT

RULING

  1. R.N.K, the applicant seeks inter alia an order to adopt the child S.N. 
  2. The matter was canvassed by way of viva voce evidence physically in court on 19th November, 2024.
  3. The child (female) was born on 10th January, 2011, and is currently aged 14 years in Grade 7 at Early Bird Primary School. She was born to S.N.K the daughter to the Applicant. The applicant is her maternal grandmother. The child wrote a consent letter dated 22nd April, 2024 indicating that she knows the Applicant well and consents to the adoption process.
  4. The Kenya Children’s Homes, a registered adoption society declared the child free for adoption.
  5. The applicant is a Kenyan National residing at Ohio in the United States. She is a business lady dealing in real estate investments and does part time jobs. She stays alone and has been in the United States since the year 2019. She is a Kenyan from Machakos County and occasionally visits home.
  6. It is the applicants’ wish to adopt the child and eventually relocate her to United States, with a view to providing the minor with better opportunities available to her in the United States. The applicant stated that she frequently interacts with the child and spend a lot of time with her whenever she visits Kenya. The Applicant confirmed that she fully understands the legal implications of the Adoption Order.
  7. The applicant is financially, socially, physically and mentally fit to adopt the child and will ensure the child continues to flourish well.
  8. The biological mother, S.N.K, confirmed that she had consented to the adoption of the child herein, who is her only child. She confirmed that she fully understands the legal implications of the Adoption Order and knows that the child will eventually relocate to the United States.
  9. On 19 November, 2024, the Court issued an order appointing S.N.K as the child’s Legal Guardian and further directing the Director of Children’s Services to investigate the suitability and fitness of the Applicant and subsequently file their respective report in court.
  10. The Sub-County Children Officer Directorate of Children’s Services, Machakos County filed a report on 10th December, 2024, recommending the adoption of the child by the Applicant herein.
  11. Section 193(1) of the Children Act provides that kinship adoption order may only be made in favour of a relative of the child. In this instance, the Applicant is a maternal grandmother to the child.
  12. The applicant has met all the legal requirements of a kinship adoption.
  13. The applicant desires the child to join and live with them in United States.  That in this court’s view does not contravene the moratorium issued by the Cabinet Secretary.  This being a kinship adoption is indeed a domestic adoption.  I am guided by three decided cases. 
  14. In re R.N.W. (minor) (2019) eKLR thus:-

“In Adoption Cause 75/2017, J.N.A. by Zoo and C.A.N. Achode, J held that:-

“According to the guidelines for alternative Family Care of Children in Kenya pg.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 adoption.  This is therefore considered to be a local adoption.”...

Having considered the above, authorities, I am persuaded to find that a kinship adoption is a domestic adoption to which this court has jurisdiction.  The adoption application before me being a kinship adoption, this court has jurisdiction to hear it and will proceed to hear the Originating Summons.  It is so ordered.”

  1. In re R.N.W. (minor) (2019) eKLR held as follows:-

“  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.

  1. 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.’”

  1. The report by the Sub-County Children Officer Directorate of Children’s Services, Machakos County is very informative of the wider family of the applicant and the child and it was positive towards this adoption, the report recommended that the applicant be allowed to adopt the child in this matter since:-
  2. The child has been declared free for adoption by a registered adoption agency;
  3. This is a kinship adoption which means that the child will remain within the family;
  4. The child’s biological mother has given consent for the adoption;
  5. The applicant’s biological children have given written consents for the adoption;
  6. The child herself has consented in writing to being adopted;
  7. The applicant has been taking care of the child by ensuring that she is well provided for and attends a good school;
  8. The Applicant is financially, socially, physically and mentally fit to adopt the child and will ensure the child continues to flourish well.
  9. The adoption will be in the best interest of the child

15.        In the end, I allow the Chamber Summons application dated 9th September 2024 in the following terms:-

  1. The applicant R.N.K is hereby authorized to adopt the chid currently identified as S.N.
  2. S.N.K is hereby appointed as the Legal Guardians of the child S.N in the event the applicant is incapacitated or in any way unable to discharge her parental obligation.
  3. The guardian ad litem is accordingly discharged.
  4. The Registrar General is hereby directed to make the appropriate entries in the adopted Children’s Register.
  5. The file is closed.

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 25TH FEBRUARY 2025

         NOEL I. ADAGI

            JUDGE

DELIVERED AT MACHAKOS THIS 25TH FEBRUARY 2025

In the presence of :

Mr.Mutava h/b for Mr. Musyimi .. for Applicant

Milly Grace.................................... Court Assistant

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