1. Before this Court is the application dated 8th July, 2024. The Applicant SNM is seeking to be authorized to adopt baby EMA, hereinafter referred to as (“the child”), and upon adoption, the child is to be known as AMM. JMM be appointed as the child’s legal guardian upon granting of the adoption orders.
2. The Applicant is a Kenyan citizen, as evidenced by her Kenyan National Identity Card. The Applicant’s financial capability and ability to provide for the child is evidenced by the employer’s letter dated 7th February 2024 confirming that she works as an Account Relationship Manager at Safaricom. Her health status is good, as evidenced by their medical reports, and she does not have any previous criminal records, as evidenced by her Certificate of Good Conduct issued by the Directorate of Criminal Investigations.
3. The Applicant has expressed a deep desire to welcome the child into her life and to expand her family. TheAapplicant further expressed her commitment to providing the child with a safe and supportive environment, ensuring the opportunity for a fulfilling and prosperous life.
4. The report from the Ministry of Labour and Social Protection State Department of Social Protection - Directorate of Children’s Services (Nairobi County) dated 19th September ,2024 indicates that the child is female and 1 years 5 months old having been born on 2nd April, 2023. She is Kenyan, born to VU and DE. VU and DE, together with their parents, gave up the child for adoption and signed parental consent. On 24th June, 2023, VU, together with the paternal grandmother of the child, swore an affidavit wilfully offering the child for adoption. The child was declared free for adoption by the Little Angels Adoption Society on 5th July, 2023, vide freeing Certificate Serial Number 002363.
5. JMM the proposed child’s legal guardian is the sister to the applicant. JMM is financially stable, responsible and organized. She also deeply cares for children. JMM signed the guardian’s letter of consent dated 22nd February 2021 affirming her commitment.
6. The child is a Kenyan citizen by virtue of Article 14 (1) which provides that a person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
7. In light of the best interests of the child principle provided for under Article 53 (2) of the Constitution of Kenya, 2010. Sections 8 (1), (2) and (3) of the Children’s Act No. 29 of 2022 and the 1st Schedule of the Children’s Act No. 29 of 2022, this Court has an obligation to prioritize the child’s best interests in making decisions touching on her.
a. Article 53 of the Constitution, 2010 states that a child’s best interests are of paramount importance in every matter concerning the child.
b. Sections 8 (1), (2) and (3) of the Children’s Act No. 29 of 2022 provides as follows;
(1) In all actions concerning children, whether undertaken by public of 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) The best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to:-
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.
c. The First Schedule as provided for under Section 8 (1) of the Children’s Act No. 29 of 2022 provides best interests considerations to be as follows:
(1) The age, maturity, stage of development, gender, background and any other relevant characteristics of the child.
(2) Distinct special needs (if any) arising from chronic ailment or disability.
(3) The relationship of the child with the child’s parent (s) and/ or guardian (s) and any other persons who may significantly affect the child’s welfare.
(4) The preference of the child, if old enough to express a meaningful preference.
(5) The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity.
(6) The stability of any proposed living arrangements for the child.
(7) The motivation of the parties involved and their capacities to give the child love, affection and guidance.
(8) The child’s adjustment to the child’s present home, school and community.
(9) The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
(10) The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
(11) Methods for assisting parental and/or guardian cooperation and resolving disputes and each parent’s/guardian’s willingness to use those methods.
(12) The effect of the child if one parent/guardian has sole authority over the child’s upbringing.
(13) The existence of domestic abuse between the parents/guardian (s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
(14) The existence of any history of child abuse by a parent and/or guardian (s); or anyone residing in the same dwelling as the child.
(15) Where the child is under one year of age, whether the child is being breast-fed.
(16) The existence of a parent’s(s) or guardian’s(s) conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
(17) Where there is a person residing with a parent or guardian, whether that person; -
(a) Has been convicted of a crime under this Act, the Sexual Offences Act, the Penal Code or any other legislation.
(b) Has been adjudicated of a juvenile offence which, if the person had been an adult at the time of the offence, the person would have been convicted of a felony.
(18) Any other factor which may have a direct or indirect effect on the physical and psychological well -being of the child.
8. The report from the Ministry of Labour and Social Protection and the State Department of Social Protection—Directorate of Children's Services (Nairobi County), along with the reports from Little Angels Network, the guardian ad litem, and the proposed legal guardian, indicates that the child will be well cared for in the custody of the adoptive parent.
9. I believe that this adoption offers the child a promising opportunity for an improved quality of life and access to a quality education. By placing the child in a loving and nurturing environment, the adoptive parent can provide the stability and support necessary for the child's emotional and intellectual growth. This new home will foster a sense of security, allowing the child to thrive and reach their full potential.
10. In the circumstances, I allow the Originating Summons dated 8th July, 2024 and make the following orders:
(a) The Applicant SNM be authorized to adopt the child known as Baby EMA.
(b) Upon adoption, the child shall be known as AMM.
(c) JMM is appointed as legal guardian of the child.
(d) The Registrar General is directed to make the relevant entries in the Adopted Children’s Register with respect to the child.
(e) The Registrar of Births and Deaths is directed to issue a birth certificate in respect of the child’s new name.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 31ST day of OCTOBER, 2024.
In the presence of:
Court Assistant: Beryl
Mr. Njenga Advocate for the Applicant