S.O.N AND L.M.N VS undefined

1. The Applicants, SIMON OYARO NYABWENGI AND LUCY MUTHONI NYABWENGI vide Originating Summons dated 23rd February 2023 have made an application for the adoption of Baby RITAH ELIZABETH AKA RITA the child herein. The applicants have been married for 28 years and have attached a copy of marriage certificate Serial number 936669. They wish to adopt the baby with the intention to provide a home to a child who would not have the opportunity and transform the child’s life. The applicants have their biological children, two sons, who are adults.

2. The matter proceeded for hearing via viva voce evidence on the Teams virtual platform on the 15th of June 2023.

3. The Applicants are Kenyan Citizens and of the Christian faith. They aver that they have the financial means and capability to take care of the Child. The 1st applicant as Relief Development Worker at World Vision International, and The second applicant works as Lecturer at Technical University of Kenya. They have had custody of the child since 21st September 2022. They reside in Ngong. Upper Matasia They fully understand the consequences of an adoption order.

4. The child is estimated to have been born on 3rd May 2018. The minor was left abandoned by her mother at Park Road Area and was rescued by Good Samaritan namely Virginia Mugo of mobile No.0721153654 and ID Number 26319527. She then took the child to Pangani Police Station and booked vide 52/02/01/2019.on 3rd January 2019, the minor was admitted to Rehema Pefa Children’s Home for care and protection. During admission to the home, the baby was weighing 9.6Kgs. On 31st March 2021, Starehe Sub County Children is officer wrote a letter to the court requesting for the child’s committal. The child was committed to Rehema Pefa Home on 15th June 2022 through a children’s court in Nairobi for care and protection vide Care and Protection case number 1055/2019.

5. The minor’s mother had been living in the streets and would always get food from the mentioned Good Samaritan. She reported that the child‘s mother left after eating the food and never came back. The Good Samaritan is not willing to write a statement.

6. On 31st August 2022, Pangani Police Station issued a second Police letter indicating that their effort to trace the mother or kindred have been fruitless. On 6th September 2022 at 3:02 PM, Buckner Kenya Adoption Services made an effort to contact the Good Samaritan Virginia Mugo on the mobile number of 0721153654, who confirmed to them she rescued the minor and that she has never heard anyone claiming her since the rescue.

7. Rehema Pefa Children’s Home reports that during her stay in the institution that no relative had turned up to claim the child, and neither have received any information from the police department concerned regarding any claimants.

8. Prior to the hearing of the adoption application, BUCKNER KENYA ADOPTION SERVICES prepared and filed a report dated 6th September 2022 and issued a certificate serial No. 0586 declaring the child free for adoption. The Court appointed a Guardian Ad litem GRACE VIHENDA CHAGWAYA.

7. The Guardian Ad Litem, GRACE VIHENDA CHAGWAYA was present in Court. She confirmed that she visited the Applicants and the Child at their home and observed that they have bonded well, and the child is well taken care of. She recommends that the Applicants be allowed to adopt the Baby.

8. An officer of the Department of Children Services, WINFRED IKINYA prepared a report dated 29th May 2023. The report established that the child is estimated to have been born on 3rd May 2018. The minor was left abandoned by her mother at Park Road Area and was rescued by Good Samaritan namely Virginia Mugo of mobile No.0721153654 and ID Number 26319527. She then took the child to Pangani Police Station and booked vide 52/02/01/2019.The report was counter-signed by Nancy Waswa

9. Through Starehe Sub County Children officer letter to the court requesting for the child’s committal. The child was committed to Rehema Pefa Home on 15th June 2022 through a children’s court in Nairobi for care and protection vide Care and Protection case number 1055/2019. The child attends CITAM School in Ngong and is in Pre-primary II.

10. The proposed Legal Guardian GILBERT NYABWENGI attended court and confirmed he is willing to take up the role of legal guardian. He is the son of the applicants.

11. After carefully assessing the records herein, I am satisfied that the applicant has fulfilled all the legal requirements relating to the Child’s adoption. Section 186 of the Children Act, 2022 provides.

The Court may make an adoption order on application (1) by-

a) A sole applicant; or

b) Two spouses jointly.

(2) The Court shall not make an adoption order in any case unless—

(a) The applicant has attained the age of twenty-five years, but is not above the age of sixty-five years: and

(b) The applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.

(3) The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.

12. The Applicants are aged 55 years and 52 years respectively.

13. Article 53 of the Constitution of Kenya, 2010 provides the overarching principles which must apply whenever any decision concerning a child is to be considered. It states:

A Child’s Best interests are of paramount importance in every matter concerning the child

14. This principle is restated Under Section 8 of the Children Act, 2022 which provides

Best interests of the child.

In all actions concerning children, whether undertaken

(1) 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) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.

Section 194 (1) (c) of the Act also requires that if the adoption order is made the order will be in the best interests of the child, having regard to the wishes of the child, depending on the child’s age and understanding, and to the ability of the applicant to maintain and educate the child;

15. In view of the foregoing, the court is of the considered view that it is in the child’s best interest to be adopted by the Applicants. Accordingly, I allow the prayers sought in the Originating Summons dated 6th December 2022 and order as follows:

I. The Applicants SIMON OYARO NYABWENGI and LUCY MUTHONI NYABWENGI be allowed to adopt BABY RITAH ELIZABETH AKA RITA

II. The Child is to be known as SARAH NYOKABI NYABWENGI.

III. The Child be presumed to be a Kenyan citizen by birth.

IV. GILBERT NYABWENGI is hereby appointed as legal guardian of Child

V. The Registrar be and is hereby directed to enter this adoption into the Register of Adopted Children.

VI. The Director of Immigration is authorized to issue the child with a Kenyan passport

VII. The Guardian Ad litem is discharged.