Introduction
1. Before the court is the Originating Summons dated 17th April 2024 by which the Applicants seeks the following orders: -
i. That VICTOR WAINAINA GITUKU and JANET MWENDE MUTUA be authorized to adopt, BABY BLESSING JOY, an infant.
ii. That upon adoption, the minor is to be known as ADIAH JOY KARURA WAINAINA.
iii. That the child be presumed a Kenyan Citizen by birth and is entitled to all rights and privileges arising therefrom.
iv. That the consent of biological parents of the minor be dispensed with since the child was abandoned shortly after birth.
v. That the Registrar General be directed to enter this adoption into the Adopted Children Register.
vi. That KENNETH NYANGE MUTUA and MERCY NYAKERINGA KABERI are hereby appointed legal guardian of the child.
vii. The court be pleased to make any further orders it may deem fit.
2. The application is supported by the Applicants’ statement dated 17th April 2024 and an Affidavit of even date sworn by the Applicants in support thereof. The Application was canvassed by way of viva voce evidence on the virtual platform on 27th July 2024.
3. The Applicants are husband and wife. They got married to each other on 1st November 2014. This is evidenced by the couple’s marriage certificate annexed to the summons as “exhibit 4” of the documents in support. The Applicants do not have any biological children as at the date of this application.
4. The Applicants testified in court that their main motivation for this application is the desire to have children and expand their family, as well as to provide for an abandoned child.
5. The applicants each confirmed to court at the hearing that they do understand the legal implications of an adoption order. They both undertake to accord to the subject child all rights due to a biological child including the right of inheritance.
ANALYSIS AND DETERMINATION
6. 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.”
Eligibility of the Child
7. The child who is the subject of the present adoption proceedings subject is believed to have been born on 19th October 2022. The child was discovered abandoned by the mother on 19th October 2022 Kiambaa, Kiambu County. He was rescued by Samaritans and a report in that regard was therefore made to Kiambaa Police Station on the same date under OB No. 2/19/10/2022.
8. Upon rescue, the child was taken to Karuri Hospital where he was admitted for a medical check-up and the baby was found to be having no medical complications. The Kiambaa sub-County Children’s Officer vide his letter of 7th November 2022 confirmed that the baby was abandoned and therefore needed to be placed at New Life Home Trust children’s home for care and protection.
9. On 8th November 2022, the Children’s Court at Kiambu in Protection and Care Case No. E077/2022, committed the child to New Life Children’s Home Trust for care and protection.
10. Buckner Kenya Adoption Services, a registered adoption agency, sat and deliberated on the applicants’ application for adoption and declared the child free for adoption on 3rd November 2023. The Society signed and issued Certificate No. 0724 of even date, declaring the child free for adoption.
11. On 22nd December 2023, the child was placed in the custody of the applicants for mandatory bonding prior to adoption. The Applicants have since been in the continuous custody and care of the child.
12. Efforts to trace the biological mother of the child have not been successful. To date no person has come forward to claim the child. This was evidenced in the final police letter dated 29th June 2023 from Kimbaa Police Post.
13. In view of the fact that the subject child was abandoned, there exists no known person from whom consent for this adoption can be sought and/or obtained. Consequently, this court dispenses with the consent of the biological parents in line with section 187(1) (a) of the Children\'s Act 2022.
14. As at the date of this application, the subject child was aged one year six months old. Consequently, the child meets the six (6) weeks age restriction provided under section 184(1) (b) of the Children\'s Act 2022.
15. Article 14 (4) of the Constitution of Kenya 2010 provides That: -
“A child found in Kenya who is or appears to be less than eight years of age and whose nationality and parents are not known is presumed to be a citizen of Kenya \"
16. The subject child was abandoned at birth in Kiambaa area, Kiambu County within the Republic of Kenya. He is therefore presumed to be a Kenyan citizen by birth.
Eligibility of the Applicants
17. Having established that the subject child is free and eligible for adoption, this court will then proceed and analyze the evidence on record to determine whether the applicants are suitable adoptive parents.
18. 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 1st November 2014. A copy of their marriage certificate was annexed to the summons. The couple currently have no biological children of their own but have an adopted son.
19. The applicants are both gainfully employed. The 1st applicant is an IT professional working in bank whilst the 2nd applicant is a business development manager. According to evidence on record, the Applicants own a home and live in their own compound in Clay city area, Kasarani.
20. Financially, the Applicants testified that they have means to provide for the child. They annexed as (Annexs 9-12), copies of their financial statements, including bank statements and pay slips evidencing their income.
21. A pre-placement report dated 24th July 2024 by Buckner Kenya Adoption Society, the adoption agency in this matter indicated that the couple have sufficient net income and assets to cater for the minor.
22. 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.
23. The Applicants were both examined by a doctor and were found to be both mentally and physically fit (Annex 8). They have equally annexed their respective copies of police clearance certificates, both from the Directorate of Criminal Investigations (Annex 5&6) indicating that both have no criminal record.
24. The applicants informed court that their respective families and are aware of these adoption proceedings and supports the same. That they intention of the adoption is also to give their adopted son a sibling.
25. The applicants have appointed KENNETH NYANGE MUTUA and MERCY NYAKERINGA KABERI who are the 2nd Applicant’s brother and sister-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 has signed a consent dated 29th December 2022 (Exhibit 16) indicating their willingness to act as legal guardians for the child.
26. In the premises, I am satisfied that the applicants are both suitable adoptive parents for the minor.
27. Section 8(1) of the Children’s Act, 2022 directs that in deciding upon any matter involving a child, courts are obliged to give priority to the best interests of the said child. The Section 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;
(b) …………”
28. 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.
29. The child has lived with the applicants in their home since 22nd December 2023. She has bonded well with the applicants whom she views as her parents. I was able to see the child online. She was a healthy and happy baby girl. She was very much at ease in the company of the applicants.
30. A home visit was conducted by Guardian ad litem reveals that the applicants live in an own spacious five bedroomed house in Clay city area, Kasarani. That the house is well furnished and has adequate facilities for the child.
31. I have perused the reports prepared by the adoption agency, Buckner Kenya Adoption Services, the guardian ad litem report and the Director of Children Services. All were positive and all recommend the adoption.
Determination:
32. 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 VICTOR WAINAINA GITUKU and JANET MWENDE MUTUA be and are hereby authorized to adopt, BABY BLESSING JOY, an infant.
ii. That henceforth, the minor be and is hereby known as ADIAH JOY KARURA WAINAINA.
iii. That the child be and is hereby presumed a Kenyan Citizen by birth and is entitled to all rights and privileges arising therefrom.
iv. That the consent of biological parents of the minor be and is hereby dispensed with since the child was abandoned shortly after birth.
v. That the Registrar General be and is hereby directed to enter this adoption into the Adopted Children Register.
vi. That KENNETH NYANGE MUTUA and MERCY NYAKERINGA KABERI be and are hereby appointed legal guardian of the child.
vii. The Guardian ad litem is hereby discharged.
33. It is so ordered.
Moses Court Assistant
…N/A……….. for the Applicant