1. By Originating Summons dated 20th March,2023, the Applicant sought the following orders: -
I. That the child be presumed to be a Kenyan citizen by birth.
II. That the Director of Immigration be authorized to issue the child with a Kenyan Passport.
III. That the Applicants SIMON KAVUVA MBALUKA & DORCAS KATULU MUYUMBUI be authorized to adopt the child to be known as CALEB MUUO.
IV. That JOSEPH MAKAU MBALUKA be appointed as the legal guardian of the child in the event of the death or incapacity of the Applicant before the child is of full age and fully self-reliant.
V. That the Registrar general do make an entry of this adoption in the adopted children Register.
VI. That the court be pleased to make any further orders it deem necessary.
2. The Summons were supported by the Statement of the Applicants dated 14th March, 2023 and their sworn affidavit of even date.
3. The Application was canvassed orally before me on the court’s virtual platform on 18th July 2024. The Applicants told the court on oath that they are Kenyan citizens and are married since 12th December 2009. That the union is yet to be blessed with any biological child.
4. The 1st Applicant informed court that he is a businessman. For the 2nd Applicant is she is a pastor. The Applicants confirmed to court on oath that they desired to adopt a child and that they are fully aware of the attendant rights and responsibilities.
5. At the hearing of this application, the court the court observed that the child played around the Applicants and appeared joyful.
6. Ms. MK(W4), the Guardian ad litem, Ms. PM(W4) from the Adoption Agency and NO (W6) from the Directorate of Children’s Services, all confirmed that they had authored their respective reports on record which gave a positive recommendation for the Applicant to be authorized to adopt the minor.
Analysis And Determination
7. The governing law in this Application is the Constitution and the Children’s Act 2022. Article 53 (2) of the Constitution which provides that in all matters concerning children, the best interest of the child must always be observed.
8. In the statutes, the best interest principle has been enacted under Section 8(1) of the Children Act 2022 which 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;”
9. Further, 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.”
10. Guided by the above constitutional and statutory provisions, the twin issues for the court to determine is whether the Applicant merited the orders and whether the adoption would serve the best interest of the minor.
11. Having carefully examined the Statutory reports on record and considered the oral evidence, I find that the Applicants meets the criteria set out in law.
12. The applicants are both Kenyan citizens as evidenced by the copies of their national identity cards which was are annexed to the summons. They are a couple who solemnized their union on 12th December 2009. A copy of their marriage certificate was annexed to the summons.
13. The Applicants are both gainfully employed. The 1st applicant is businessman whilst the 2nd applicant is a pastor. According to evidence on record, the Applicants reside in a two bedroomed house in Makueni. That the compound has a kitchen garden and that the home environment is quiet offering good environment for the child to grow.
14. Financially, the Applicants testified that they have means to provide for the child. They annexed copies of their bank statements evidencing their income. A pre-placement report conducted in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
15. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
16. The Applicants were both examined by a doctor and were found to be both mentally and physically fit to undertake the adoption. They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations indicating that both have no criminal record.
17. The Applicants informed court that their family and friends are aware of these adoption proceedings and supports the same. That their intention of this adoption is to have a child of their own and also to provide for provide for a needy child.
18. The Applicants have appointed JOSEPH MAKAU MBALUKA who are the 1st and 2nd Applicants brother and brother-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 guardian signed a consent dated 13th January 2022 (Exhibit SK-DK 17) indicating his willingness to act as legal guardian for the child.
19. Regarding the child, Kenya Children’s Homes, the Adoption Society in this matter stated in its report that the Applicant was suitable and that the child was free for adoption. The Adoption society therefore declared the child free for adoption and issued the requisite certificate serial No. 830 dated 16th February, 2022.
20. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
21. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
22. This was a child who was abandoned after birth. He 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.
23. The child has lived with the applicants in their home since 21st April 2021. He has bonded well with the applicants whom he views as his parents. I was able to see the child online. He was a healthy and happy baby boy and was very much at ease in the company of the Applicants.
24. I have perused the reports prepared by the adoption agency, the guardian ad litem’s report and that of the Director of Children Services. All were positive and all recommend the adoption.
25. 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 Applicants herein SIMON KAVUVA MBALUKA and DORCAS KATULU MUYUMBUI be and are hereby authorized to adopt BABY MOSES ONUONGA aka ABANDONED CHILD aka MOSES
ii. That henceforth, the child to be and is hereby known as CALEB MUUO.
iii. That the child be and is hereby presumed to be born in Kenya and is therefore a Kenyan citizen by birth, entitled to all rights and privileges arising therefrom.
iv. That the Director of Immigration be an dis hereby authorized to issue the child with a Kenyan Passport.
v. That JOSEPH MAKAU MBALUKA be appointed as the legal guardian of the child in the event of the death or incapacity of the Applicant before the child is of full age and fully self-reliant.
vi. That the Registrar general be and is hereby directed to make an entry of this adoption in the adopted children Register.
vii. The Guardian ad litem is hereby discharged.
26. It is so ordered.
Moses Court Assistant
…Nelima Walubengo………………. for the Applicants
I. That the child be presumed to be a Kenyan citizen by birth.
II. That the Director of Immigration be authorized to issue the child with a Kenyan Passport.
III. That the Applicants SIMON KAVUVA MBALUKA & DORCAS KATULU MUYUMBUI be authorized to adopt the child to be known as CALEB MUUO.
IV. That JOSEPH MAKAU MBALUKA be appointed as the legal guardian of the child in the event of the death or incapacity of the Applicant before the child is of full age and fully self-reliant.
V. That the Registrar general do make an entry of this adoption in the adopted children Register.
VI. That the court be pleased to make any further orders it deem necessary.
2. The Summons were supported by the Statement of the Applicants dated 14th March, 2023 and their sworn affidavit of even date.
3. The Application was canvassed orally before me on the court’s virtual platform on 18th July 2024. The Applicants told the court on oath that they are Kenyan citizens and are married since 12th December 2009. That the union is yet to be blessed with any biological child.
4. The 1st Applicant informed court that he is a businessman. For the 2nd Applicant is she is a pastor. The Applicants confirmed to court on oath that they desired to adopt a child and that they are fully aware of the attendant rights and responsibilities.
5. At the hearing of this application, the court the court observed that the child played around the Applicants and appeared joyful.
6. Ms. MK(W4), the Guardian ad litem, Ms. PM(W4) from the Adoption Agency and NO (W6) from the Directorate of Children’s Services, all confirmed that they had authored their respective reports on record which gave a positive recommendation for the Applicant to be authorized to adopt the minor.
Analysis And Determination
7. The governing law in this Application is the Constitution and the Children’s Act 2022. Article 53 (2) of the Constitution which provides that in all matters concerning children, the best interest of the child must always be observed.
8. In the statutes, the best interest principle has been enacted under Section 8(1) of the Children Act 2022 which 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;”
9. Further, 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.”
10. Guided by the above constitutional and statutory provisions, the twin issues for the court to determine is whether the Applicant merited the orders and whether the adoption would serve the best interest of the minor.
11. Having carefully examined the Statutory reports on record and considered the oral evidence, I find that the Applicants meets the criteria set out in law.
12. The applicants are both Kenyan citizens as evidenced by the copies of their national identity cards which was are annexed to the summons. They are a couple who solemnized their union on 12th December 2009. A copy of their marriage certificate was annexed to the summons.
13. The Applicants are both gainfully employed. The 1st applicant is businessman whilst the 2nd applicant is a pastor. According to evidence on record, the Applicants reside in a two bedroomed house in Makueni. That the compound has a kitchen garden and that the home environment is quiet offering good environment for the child to grow.
14. Financially, the Applicants testified that they have means to provide for the child. They annexed copies of their bank statements evidencing their income. A pre-placement report conducted in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
15. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
16. The Applicants were both examined by a doctor and were found to be both mentally and physically fit to undertake the adoption. They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations indicating that both have no criminal record.
17. The Applicants informed court that their family and friends are aware of these adoption proceedings and supports the same. That their intention of this adoption is to have a child of their own and also to provide for provide for a needy child.
18. The Applicants have appointed JOSEPH MAKAU MBALUKA who are the 1st and 2nd Applicants brother and brother-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 guardian signed a consent dated 13th January 2022 (Exhibit SK-DK 17) indicating his willingness to act as legal guardian for the child.
19. Regarding the child, Kenya Children’s Homes, the Adoption Society in this matter stated in its report that the Applicant was suitable and that the child was free for adoption. The Adoption society therefore declared the child free for adoption and issued the requisite certificate serial No. 830 dated 16th February, 2022.
20. On review of the evidence on record, I am satisfied that the applicants are generally financially secure and are capable of providing or the needs of the child. Concerning religion, the applicants have deponed that both are Christians and that they intend to raise the child in the Christian faith.
21. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
22. This was a child who was abandoned after birth. He 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.
23. The child has lived with the applicants in their home since 21st April 2021. He has bonded well with the applicants whom he views as his parents. I was able to see the child online. He was a healthy and happy baby boy and was very much at ease in the company of the Applicants.
24. I have perused the reports prepared by the adoption agency, the guardian ad litem’s report and that of the Director of Children Services. All were positive and all recommend the adoption.
25. 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 Applicants herein SIMON KAVUVA MBALUKA and DORCAS KATULU MUYUMBUI be and are hereby authorized to adopt BABY MOSES ONUONGA aka ABANDONED CHILD aka MOSES
ii. That henceforth, the child to be and is hereby known as CALEB MUUO.
iii. That the child be and is hereby presumed to be born in Kenya and is therefore a Kenyan citizen by birth, entitled to all rights and privileges arising therefrom.
iv. That the Director of Immigration be an dis hereby authorized to issue the child with a Kenyan Passport.
v. That JOSEPH MAKAU MBALUKA be appointed as the legal guardian of the child in the event of the death or incapacity of the Applicant before the child is of full age and fully self-reliant.
vi. That the Registrar general be and is hereby directed to make an entry of this adoption in the adopted children Register.
vii. The Guardian ad litem is hereby discharged.
26. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
3RD OCTOBER, 2024
ADO MOSES
JUDGE
In the presence of:Moses Court Assistant
…Nelima Walubengo………………. for the Applicants