1. Vide an Originating Summons dated 18th November 2024, the Joint Applicant sought the following six orders:-
(1) That the applicants be authorized to adopt the child Baby Eugene;
(2) That the consent of the biological parents be dispensed with as the child was abandoned;
(3) That upon the making of the adoption orders, the said child be known as Paul Mwanguwa Samboja;
(4) That the Register General do make the appropriate entry of Paul Mwanguwa Samboja in the Adopted Children’s Register;
(5) That the child Paul Mwanguwa Samboja be presumed to be a Kenya citizen born in Kenya and the Director of Immigration Services, do issue Paul Mwanguwa Samboja with a Kenya passport; and
(6) That Joyce Mkawughanga Nyambu be appointed Legal Guardian of the child Paul Mwanguwa Samboja.
2. In the statement in support of the application, the joint applicants averred that they were 56 and 52 years old, respectively, at the time the application was filed. They are married to each other under the African Christian Marriage & Divorce Act (repealed). Their wedding was celebrated on 26th April 2008. The joint applicants are, respectively, a businessman and a human resource assistant. The couple, who profess the Christian faith, have no children. They reside at Mshomoroni Jungle Estate in Mombasa County.
3. They are of sound mind and have no criminal record. They aren’t related to the child. They have had custody of the child since 21st February 2017. The joint applicants are Kenyans of the African race.
4. The proposed adoptive child, Baby Eugene, was reportedly abandoned on 18th October 2014 by the mother at a shop in Eastleigh. The mother abandoned the child and ran away. The incident was reported at Kamukunji Police Station vide OB No.35/18/10/2014. It is estimated that the child was 7 months old at the time.
5. The child was rescued by the Child Welfare Society of Kenya and was placed at CWSK Mama Ngina Kenya TPS for continued care and protection. He was transferred to CWSK Mji wa Salama, Temporary Place of Safety in Mombasa, on 11th November 2014. He was committed to the institution through Tononoka Children’s Court Protection & Care Cause No. 9 of 2015 on 13th January 2015.
6. No one claimed the child. The lady who abandoned him has not been traced to date. Attempts at media tracing of the biological parents of the child failed. The child’s details were published in three editions of the Sunday Nation on 8th March 2015, 10th May 2015, and 28th June 2015 with no success.
7. The child was placed in the custody of the joint applicants on 21st February, 2017 and has been with them since.
8. The report of the Child Welfare Society of Kenya stated that it would be in the best interest of the child to be adopted. The said body issued a certificate dated 15th February 2017, in which it freed the child for adoption.
9. The Child Welfare Society of Kenya wrote two reports on 13th June 2014, in which they recommended the child's adoption by the joint applicants.
10. On 16th December 2024, this Court heard the Chamber Summons dated 18th November 2024, through which the joint applicants sought to have Philemon Migulo Sio appointed as the guardian ad litem. Upon hearing the said person, the court was satisfied that he was qualified and duly appointed him as such. The Court directed him and the Directorate of Children's Services to prepare and file the requisite reports within 30 days of the said date.
11. This matter was heard on merit on 14th and 27th February 2025 in open Court. I shall briefly set out the parties' evidence below.
12. The first witness was Ms Louisa Kemuma. Ms Kemuma, an officer in the regional office of the Directorate of Children Services, testified that upon receipt of the Court orders, they carried out a social enquiry on 16th January 2025 and wrote a report dated 27th January 2025, which was filed on 13th February 2025. Their finding was that the child had bonded well with the joint applicants. He appeared to be both healthy and happy. Ms Kemuma recommended that the adoption application be allowed.
13. The guardian ad litem was the second witness. Mr Philemon Migulo Sio stated that he resides in the Mshomoroni Mjambere Ward. He is a businessman engaged in the sale and purchase of chickens. He testified that the joint applicants' home environment was good. They live in a 2-bedroom Swahili house, and the child has his own room. He recommended the adoption.
14. The third witness was Ms Veronica Mangu Mwazo. Ms Mwazo is a resident of Junda and a neighbour and friend of the joint applicants. She recommended the adoption.
15. Ms Joyce Mkawughanga Nyambu was the fourth witness. Ms. Nyambu is the sister of the second applicant and was proposed as the legal guardian. She testified that she was aware of the duties of the legal guardians and was ready to undertake them. She testified that if the parents of the proposed adoptive child were not in for any reason, she was prepared to step in and take over. Ms. Nyambu is not married and has no children of her own.
16. Peter Samboja Mwanguwa was the fifth witness. He testified that he was aware of what adoption entails. The child had been with them since 2017. He stated that if the adoption were successful, the child would have the right to inherit from them.
17. Ms. Vigilance Zighe Nyambu was the sixth witness. It was her evidence that they had no children save for the proposed adoptive child. She, like her husband, was aware that adoption is permanent. She testified that if the child erred, she was prepared to discipline him. She stated that the child would be called Paul Mwanguwa Samboja if the application was allowed.
18. The last Witness was Ms Lilian Kaari Maore of the Children Welfare Society of Kenya. She testified that they assessed both the applicants and the child and that they recommended the adoption.
19. I have considered the application herein, the supporting documents and the evidence of the various witnesses. The issues that emerge for determination are whether the child is available for adoption, if the applicants are fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
20. I have already set out the circumstances under which the child was found. He was abandoned in a shop in the Eastleigh area of Nairobi by a lady who then ran away. At the time he was abandoned, the child was a few months old. Attempts to trace the said lady have been unsuccessful. Nobody has come forward to claim the child despite efforts made through media tracing. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. Therefore, the need for consent pursuant to sections 186(8) and 187 of the Children Act 2022 is dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
21. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned immediately after her birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are unknown is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is presumed to be a Kenyan citizen by birth.
22. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I do not doubt that the child is fit for adoption.
23. Concerning the joint applicants’ suitability, they are Kenyan citizens, aged 57 and 53 years, respectively, at the time of this judgment, which places them within the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. From the records I have seen, the Joint Applicants have the means to care for the child they are adopting. They have no criminal records. Since the placement of the child in their joint custody, the child has fully bonded with them. The joint applicants understand the consequences of adoption and know that once an adoption order is made, it is permanent.
24. Consequently, I do not doubt that they meet the requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
25. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act, 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.
26. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
27. The child herein was found abandoned. He, therefore, needs necessities like food, shelter, education and clothing. He has fully integrated with the joint applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
28. In my view, the adoption application has merit. I therefore issue the following orders:-
1. I declare the child, Baby Eugene, a Kenyan citizen by birth;
2. I dispense with the consent of the biological parents to this adoption since Baby Eugene was abandoned shortly after birth by the biological mother;
3. The joint applicants, Peter Samboja Mwanguwa and Vigilance Zighe Nyambu, are hereby authorized to adopt Baby Eugene;
4. Baby Eugene shall henceforth be known as Paul Mwanguwa Samboja;
5. I appoint Joyce Mkawughanga Nyambu as the legal guardian of Paul Mwanguwa Samboja and entrust her with the responsibility of taking care of the child in the event that the joint applicants become deceased or are otherwise permanently unable to take care of him before he attains the age of majority;
6. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Paul Mwanguwa Samboja as being 18th March 2014 in the Adopted Children is Register as provided for by section 201 of the Children Act, 2022; and
7. The guardian ad litem, Mr Philemon Migulo Sio, is hereby discharged.
29. I make no orders regarding costs, as this is a non-contingent adoption matter.
30. Orders accordingly
Dated and signed at Mombasa this 1st day of April 2025. Delivered in the presence of the joint applicants in Chambers.
(1) That the applicants be authorized to adopt the child Baby Eugene;
(2) That the consent of the biological parents be dispensed with as the child was abandoned;
(3) That upon the making of the adoption orders, the said child be known as Paul Mwanguwa Samboja;
(4) That the Register General do make the appropriate entry of Paul Mwanguwa Samboja in the Adopted Children’s Register;
(5) That the child Paul Mwanguwa Samboja be presumed to be a Kenya citizen born in Kenya and the Director of Immigration Services, do issue Paul Mwanguwa Samboja with a Kenya passport; and
(6) That Joyce Mkawughanga Nyambu be appointed Legal Guardian of the child Paul Mwanguwa Samboja.
2. In the statement in support of the application, the joint applicants averred that they were 56 and 52 years old, respectively, at the time the application was filed. They are married to each other under the African Christian Marriage & Divorce Act (repealed). Their wedding was celebrated on 26th April 2008. The joint applicants are, respectively, a businessman and a human resource assistant. The couple, who profess the Christian faith, have no children. They reside at Mshomoroni Jungle Estate in Mombasa County.
3. They are of sound mind and have no criminal record. They aren’t related to the child. They have had custody of the child since 21st February 2017. The joint applicants are Kenyans of the African race.
4. The proposed adoptive child, Baby Eugene, was reportedly abandoned on 18th October 2014 by the mother at a shop in Eastleigh. The mother abandoned the child and ran away. The incident was reported at Kamukunji Police Station vide OB No.35/18/10/2014. It is estimated that the child was 7 months old at the time.
5. The child was rescued by the Child Welfare Society of Kenya and was placed at CWSK Mama Ngina Kenya TPS for continued care and protection. He was transferred to CWSK Mji wa Salama, Temporary Place of Safety in Mombasa, on 11th November 2014. He was committed to the institution through Tononoka Children’s Court Protection & Care Cause No. 9 of 2015 on 13th January 2015.
6. No one claimed the child. The lady who abandoned him has not been traced to date. Attempts at media tracing of the biological parents of the child failed. The child’s details were published in three editions of the Sunday Nation on 8th March 2015, 10th May 2015, and 28th June 2015 with no success.
7. The child was placed in the custody of the joint applicants on 21st February, 2017 and has been with them since.
8. The report of the Child Welfare Society of Kenya stated that it would be in the best interest of the child to be adopted. The said body issued a certificate dated 15th February 2017, in which it freed the child for adoption.
9. The Child Welfare Society of Kenya wrote two reports on 13th June 2014, in which they recommended the child's adoption by the joint applicants.
10. On 16th December 2024, this Court heard the Chamber Summons dated 18th November 2024, through which the joint applicants sought to have Philemon Migulo Sio appointed as the guardian ad litem. Upon hearing the said person, the court was satisfied that he was qualified and duly appointed him as such. The Court directed him and the Directorate of Children's Services to prepare and file the requisite reports within 30 days of the said date.
11. This matter was heard on merit on 14th and 27th February 2025 in open Court. I shall briefly set out the parties' evidence below.
12. The first witness was Ms Louisa Kemuma. Ms Kemuma, an officer in the regional office of the Directorate of Children Services, testified that upon receipt of the Court orders, they carried out a social enquiry on 16th January 2025 and wrote a report dated 27th January 2025, which was filed on 13th February 2025. Their finding was that the child had bonded well with the joint applicants. He appeared to be both healthy and happy. Ms Kemuma recommended that the adoption application be allowed.
13. The guardian ad litem was the second witness. Mr Philemon Migulo Sio stated that he resides in the Mshomoroni Mjambere Ward. He is a businessman engaged in the sale and purchase of chickens. He testified that the joint applicants' home environment was good. They live in a 2-bedroom Swahili house, and the child has his own room. He recommended the adoption.
14. The third witness was Ms Veronica Mangu Mwazo. Ms Mwazo is a resident of Junda and a neighbour and friend of the joint applicants. She recommended the adoption.
15. Ms Joyce Mkawughanga Nyambu was the fourth witness. Ms. Nyambu is the sister of the second applicant and was proposed as the legal guardian. She testified that she was aware of the duties of the legal guardians and was ready to undertake them. She testified that if the parents of the proposed adoptive child were not in for any reason, she was prepared to step in and take over. Ms. Nyambu is not married and has no children of her own.
16. Peter Samboja Mwanguwa was the fifth witness. He testified that he was aware of what adoption entails. The child had been with them since 2017. He stated that if the adoption were successful, the child would have the right to inherit from them.
17. Ms. Vigilance Zighe Nyambu was the sixth witness. It was her evidence that they had no children save for the proposed adoptive child. She, like her husband, was aware that adoption is permanent. She testified that if the child erred, she was prepared to discipline him. She stated that the child would be called Paul Mwanguwa Samboja if the application was allowed.
18. The last Witness was Ms Lilian Kaari Maore of the Children Welfare Society of Kenya. She testified that they assessed both the applicants and the child and that they recommended the adoption.
19. I have considered the application herein, the supporting documents and the evidence of the various witnesses. The issues that emerge for determination are whether the child is available for adoption, if the applicants are fit to adopt the baby, and, most importantly, whether the adoption is in the best of the child.
20. I have already set out the circumstances under which the child was found. He was abandoned in a shop in the Eastleigh area of Nairobi by a lady who then ran away. At the time he was abandoned, the child was a few months old. Attempts to trace the said lady have been unsuccessful. Nobody has come forward to claim the child despite efforts made through media tracing. Given the period that has elapsed since the said occurrence, it is most unlikely that the biological parents of the child will ever turn up. Therefore, the need for consent pursuant to sections 186(8) and 187 of the Children Act 2022 is dispensed with. I am guided by the case of In re HN (Baby) [2020] eKLR, where the court stated:-
“As there is nobody laying claim over the baby, the requirement for consent is hereby dispensed with pursuant to Section 159(1) of the Children’s Act. In view of the above consideration, it is my finding that the child is available and suitable for adoption.”
21. Regarding the baby’s nationality, the evidence adduced shows that he was found abandoned immediately after her birth. Article 14(4) of the Constitution of Kenya, 2010 states that a child under eight years of age whose nationality and parents are unknown is presumed to be a Kenyan citizen by birth. Given this provision, the child herein is presumed to be a Kenyan citizen by birth.
22. Regarding age, the child is above six weeks and below 18 years, which provision falls within the age bracket of any adoptive baby under Section 184 (b) of the Children Act, 2022. Further, Section 185(1) of the said Act states that any child who is a resident of Kenya, whether born in Kenya or not, is eligible for adoption. I do not doubt that the child is fit for adoption.
23. Concerning the joint applicants’ suitability, they are Kenyan citizens, aged 57 and 53 years, respectively, at the time of this judgment, which places them within the age bracket of not less than 25 years nor more than 65 years for an adoptive parent in compliance with Section 186(2) of the Children Act, 2022. From the records I have seen, the Joint Applicants have the means to care for the child they are adopting. They have no criminal records. Since the placement of the child in their joint custody, the child has fully bonded with them. The joint applicants understand the consequences of adoption and know that once an adoption order is made, it is permanent.
24. Consequently, I do not doubt that they meet the requirements to adopt the baby. I am guided by the case of In re B (Baby) [2018] eKLR, where the court stated:-
“I am of the considered view that weighing all factors and the evidence placed before me, the applicants are of sufficient ability to bring up the child and to furnish her with appropriate support and maintenance within their resource base available to them.”
25. On the question of whether the adoption is in the best interests of the baby, I am guided by Article 53(2) of the Constitution of Kenya, 2010 and Section 8(1) and (2) of the Children Act, 2022 which underscores the best interests of a child as the primary consideration before making any decision concerning a baby.
26. Further, the court in the case of In re MA (Baby) [2021] eKLR stated:-
“This court, in the case of In re B (Baby) [2018] eKLR, held that the purpose of Kenya’s Constitution and Children’s Act is to protect and promote the welfare of Children by providing them with stable family units. The fundamental concern, therefore, in every adoption cause is the best interest of that very child.”
27. The child herein was found abandoned. He, therefore, needs necessities like food, shelter, education and clothing. He has fully integrated with the joint applicants. It is obviously in the child's best interests that this adoption application is allowed. I am guided by the case of In re IK (Child) [2020] eKLR, where the court stated:-
“She needs parental care to grow up as a normal child with emotional and physical protection, which the applicants have stepped in to offer. In that regard, the applicants meet the legal requirements for adoption. Further, all reports recommended adoption for the benefit and well-being of the child. As the Constitution and the law state, in all matters concerning a child, the child's best interests are paramount.”
28. In my view, the adoption application has merit. I therefore issue the following orders:-
1. I declare the child, Baby Eugene, a Kenyan citizen by birth;
2. I dispense with the consent of the biological parents to this adoption since Baby Eugene was abandoned shortly after birth by the biological mother;
3. The joint applicants, Peter Samboja Mwanguwa and Vigilance Zighe Nyambu, are hereby authorized to adopt Baby Eugene;
4. Baby Eugene shall henceforth be known as Paul Mwanguwa Samboja;
5. I appoint Joyce Mkawughanga Nyambu as the legal guardian of Paul Mwanguwa Samboja and entrust her with the responsibility of taking care of the child in the event that the joint applicants become deceased or are otherwise permanently unable to take care of him before he attains the age of majority;
6. The Registrar General is hereby ordered to make an entry recording the adoption order made herein and the date of birth of Paul Mwanguwa Samboja as being 18th March 2014 in the Adopted Children is Register as provided for by section 201 of the Children Act, 2022; and
7. The guardian ad litem, Mr Philemon Migulo Sio, is hereby discharged.
29. I make no orders regarding costs, as this is a non-contingent adoption matter.
30. Orders accordingly
Dated and signed at Mombasa this 1st day of April 2025. Delivered in the presence of the joint applicants in Chambers.