Analysis and Determination
6.I have considered this application, the Reports filed in court as well as all the evidence adduced in support thereto. The prerequisites for adoption are set out in Section 184 (1) of the Children Act 2002 which provides –
7.The subject child was born on 26th July 2014. A copy of her Birth certificate serial No. xxxx appears as Annexture LNW ‘13’ to the summons. Therefore the child is now aged nine (9) years old and is well above the six (6) week age limit provided for in law.
8.KKPI Adoption Society which is a registered adoption agency have annexed to their report a copy of their certificate Serial Number xxxx dated 27th November 2021 declaring the child Free For Adoption. I find that the legal prerequisites for an adoption order have been met.
9.The duty of this court is to analyze the evidence on record to determine whether the Applicants are suitable adoptive. The Applicants are both Kenya citizens as evidenced by the annexed copies of their National Identity Cards (Annexture LNW’1’).
10.The Applicants are a couple who got married under Luhyia Customary Law. The couple later solemnized their union on 6th June 1981. A copy of their Marriage Certificate Serial Number xxxx appears as Annexture LMW’2’ to the summons. Their union is blessed by four (4) children who are all adults and live independent lives.
11.The 1st Applicant was a University lecturer who retired in the year 2014. He now lives at the family rural home in Busia County. The 2nd Applicant who holds dual Kenyan and British citizenship is a registered nurse. She works as a midwife with [Particulars Withheld] Nursing Home in the U.K. The 2nd Applicant has annexed a copy of a letter dated 9th June 2021 (Annexture LNW’4’) from her employer as well as copy of Payslip (Annexture LNW ’5’) confirming the fact of her employment.
12.The couple have also annexed copies of bank statements for accounts held at Barclays Bank UK (Annexture LNW’6’). Additionally, the couple own land in Busia County. Their monthly income is approximately Kshs.400,000. I am satisfied that the Applicants are financially stable and are able to provide for the needs of the subject child.
13.The Applicants are both Christians and intend to raise the child in the Christian faith. They have annexed a copy of a recommendation letter dated 19th May 2021 written by Reverend INW of [Particulars Withheld] Church in Nambale Diocese Busia County. (Annexture LNW’3’)
14.The Applicants were both examined by a Doctor and were found to be physically and mentally fit. They have both annexed copies of clearance certificates issued to them by the Directorate of Criminal Investigations. (Annexture LNW’7’)
15.The Applicants have appointed ATM as the legal Guardian for the child. The proposed legal Guardian has signed a consent dated 20th March 2023 confirming her willingness to act as the legal Guardian for the child (Annexture LNW’18’)
16.The Applicants told the court that their adult children are aware of and support their intention to adopt the subject child. Copies of the consents dated 20th March 2023 signed by their children DW, AW, BW and JW is annexed to the summons Page 55-59 of bundle.
17.Section 186(8)(a) of the Children Act 2022 provides as follows:-
18.The child’s biological parents BW and AA both testified in court. They both confirmed that they were aware of and fully support the application for adoption made by the child’s paternal grandparents. The parents both confirmed to the court that they understood that an adoption order once made cannot be reversed. Each parent signed Affidavit of consent dated 20th March 2023 (Annexture LNW’15’ and LNW’16’). I am satisfied that the child’s biological parents have voluntarily consented to this adoption.
19.I note that the Applicants are both senior citizens. Section 186 (2) of the Children Act 2022
20.The Applicants herein are aged 73 years male Applicant) and 66 years female applicant. They are both twenty-five (25) years older than the child, but both are aged above sixty-five (65) years old and would be disqualified under the provisions of Section 186 (2) (i) of the Act.
21.However the provisions in Section 186 (2) (3) provides that:-
22.The Applicants herein are both relatives of the child being the paternal grand-parents of the child.
23.Further Section 186 (5) provides that:-(5)The court shall not make an adoption order in favour of the following persons unless the court is satisfied on reason to be stated on the record that there are special circumstances that warrant the making of the adoption order [in respect of] an applicant or joint applicants who has, or both have attained the age of Sixty -five years.)
24.As earlier stated the subject child is the grand child of the Applicants. The child’s mother conceded that after disagreements with her husband she abandoned the child with the father’s family when the child was only four (4) years old. The child’s Father told the court that he is unemployed and has no means to provide for the child.
25.The child’s parents confirm that it is the Applicants who have been meeting all the needs of the child including paying his school fees, and paying rent for the house where the child lives with an uncle.
26.The reports on record indicate that the child’s father is an alcoholic who is unable to retain a job and who makes no provision for his two (2) children. If the Applicants did not step in to take up the parental role then the child would be left destitute and may have to be committed to a Home.
27.I find that these are special circumstances warranting the approval of this adoption by persons who are aged over Sixty-five (65) years old.
28.Section 8(1) of the Children Act 2022 provides as follows:-
29.This is a child who is not receiving any care from her biological parents. The child’s paternal grand-parents having raised four (4) children to maturity valiantly stepped in to provide for the child’s needs and to provide parental care for the child. This is a kinship adoption which is provided for by Section 193 of the Children Act. The child will remain within the same family unit and will retain regular contact with her blood relatives.
30.I was able to see the child online. She was a healthy young girl who cheerfully answered the questions put to her by the court. The child confirmed that she lives with an Uncle in Nairobi. She further confirmed that she knew the Applicants as her grandparents. The child expressed her willingness to be adopted by the Applicants. I am satisfied that the child has given her consent to this adoption as required by law.
31.A home visit was conducted by the Childrens Department. The Applicants live in their own home in Busia County. They have a spacious three bed-roomed mansionette. In Nairobi the child lives in a two bed-roomed Apartment with an Uncle. The Applicants pay the house rent. The living conditions were found to be suitable.
32.I have perused the reports prepared by the Adoption Agency, the Guardian Ad litem and the Director Childrens Services. All three reports were positive and all recommend the adoption.
33.All in all I am satisfied that this adoption serves the best interest of the subject child. I therefore allow the application and make the following orders:-(1)Applicants LNW and GEWare authorized to adopt the child known as Baby ME(2)Upon adoption the child will be known as ME.(3)ATM is appointed as the legal guardian of the child.(4)The Registrar-General is directed to make the relevant entry in the Adoptions Register.