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High CourtAllowedOriginating Summons dated 13th September 2019 (adoption cause)· [2020] KEHC 20 (KLR)

In re Adoption of Baby K aka Baby G aka Unknown Baby Boy aka Abandoned Baby Boy

High Court of Kenya
17 December 2020
SMS. N. Mutuku
1,068 words in judgment
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The bottom line

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The High Court confirmed that adoption can proceed even if the child is abandoned and parents cannot be located.

What this practically means

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Executive summary

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AA and SAK, a married couple under Islamic law, sought by Originating Summons dated 13th September 2019 to adopt an abandoned baby boy presumed born on 28th July 2018, to rename him KS, to appoint MAA as legal guardian, and to have the adoption entered in the Register of Adoptions with a birth certificate issuing. The child was found abandoned at Kaloleni Estate, Nairobi, reported at Makongeni Police Station (OB No. 38/29/7/2018), admitted at Thomas Barnado House, and committed there for care and protection by the Children's Court in Case No. 266 of 2019. His parents were never traced, so their consent could not be obtained. The child was freed for adoption by Kenya Children's Home on 17th April 2019 and placed with the Applicants on 26th April 2019. MKK was appointed Guardian Ad Litem by court order of 30th January 2020. The court considered reports from Kenya Children's Home, the Director of Children's Services and the Guardian Ad Litem, all favourable. Noting anomalies in references to the Applicants as childless, the court sought clarification, establishing that the Applicants have no biological children together but that SAK is father of two adult children, FAS and NM, by a previous marriage to AN (divorced since January 2012), both of whom consented to the adoption. Finding the Applicants over 25 years older than the child, financially capable, and compliant with Section 158 of the Children's Act, the court held all prerequisites met and the adoption in the child's best interest. It allowed the Originating Summons in full, issuing the adoption order, presuming Kenyan citizenship and the stated date of birth, appointing the legal guardian, directing registration, and discharging the Guardian Ad Litem.

Key legal issues

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01

Fitness of applicants and compliance with statutory prerequisites for adoption

Holding

The Applicants satisfied the age, marital status and financial capability requirements and all prerequisites for adoption were met.

Reasoning

The court considered the marriage certificate, ages of the applicants (both over 25 years older than the child), payslips and bank statements evidencing financial capability, the freeing certificate by Kenya Children's Home, the abandonment history, consents of the adult children, and favourable reports from the Children's Department and Guardian Ad Litem.

p. 2
02

Consent of biological parents where child is abandoned

Holding

Parental consent was dispensed with as the parents could not be traced.

Reasoning

The child was found abandoned, reported to police, and committed to Thomas Barnado House for care and protection. A letter from Makongeni Police Station confirmed no one came to claim the child, so consent could not be obtained.

p. 2

Legal principles established

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  • An adoption order may issue where the child is abandoned, parental consent cannot be obtained, and the applicants meet the requirements of Section 158 of the Children's Act, guided by the best interest of the child.

Court orders

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  1. 1.AA and SAK authorized to adopt the child BABY K aka Baby G aka Unknown Baby Boy aka Abandoned Baby Boy
  2. 2.The child shall be known as KS
  3. 3.The child presumed to be a Kenyan Citizen
  4. 4.The child presumed to have been born on 28th July 2018
  5. 5.MAA appointed Legal Guardian of the child
  6. 6.Registrar General directed to enter the adoption into the Register of Adoptions and a Birth Certificate to issue
  7. 7.MKK discharged as Guardian Ad Litem

Authorities

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Legislation

  • Children's ActSection 158
Jurisdiction invoked
Section 158 of the Children's Act (adoption jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Adoption of Baby K aka Baby G aka Unknown Baby Boy aka Abandoned Baby Boy", Case Analysis (2020). Originating Summons dated 13th September 2019 (adoption cause). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.