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Case Brief · caselaw.co.ke
High CourtAllowedOriginating Summons filed 26th October 2018 (Nairobi Adoption Cause; Care and Protection Case No. 13 of 2016 referenced)· [2020] KEHC 2927 (KLR)

In re Adoption of Baby VN alias VW

High Court of Kenya
2 October 2020
CMC. Meoli
784 words in judgment
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The bottom line

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A woman can adopt a male child in Kenya if she successfully proves she meets specific 'special circumstances' criteria.

What this practically means

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Executive summary

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This was an adoption cause brought by way of Originating Summons filed on 26th October 2018 by MWM, a 59-year-old visually challenged teacher seeking to adopt Baby VN alias VW, a male child presumed born on 24th July 2016, who was rescued from a pit latrine by good Samaritans, hospitalised at Kerugoya County Referral Hospital, committed by the Kerugoya Children Court to New Life Home Trust in a care and protection case, declared free for adoption by Buckner Kenya Adoption Services in July 2017, and released to the Applicant under a care agreement in March 2018. The court considered the guardian ad litem's report, the Children Officer's report and the adoption agency's social enquiry report, all of which portrayed the Applicant as a responsible, mature and stable parent with a steady income of about KShs.140,000 monthly, strong family support, and prior successful adoption of a female child in 2013 as well as care of a young nephew. The principal legal hurdle was Section 158(2)(b) of the Children Act, which restricts adoptions of male children by female applicants to special circumstances. The court found special circumstances in the Applicant's demonstrated parental commitment, her teaching profession and the applicable Adoption Committee Guidelines of January 2010, and held the adoption consistent with the child's best interests under Article 53 of the Constitution and Section 4(3) of the Children Act. Prayers 1 to 4 of the Originating Summons were granted on 2nd October 2020.

Key legal issues

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01

Whether special circumstances exist under Section 158(2)(b) of the Children Act

Holding

The Applicant's prior adoption of a female child, care of a nephew, demonstrated parental responsibility and profession as a teacher constitute special circumstances.

Reasoning

The court reviewed the guardian ad litem, Children Officer and adoption agency reports, finding the Applicant a responsible, mature and stable person with prior demonstrated capacity to parent since 2013, strong family support, steady income and emotional preparedness, satisfying the statutory exception.

p. 2
02

Best interests of the child

Holding

The adoption serves the subject child's best interests under Article 53 of the Constitution and Section 4(3) of the Children Act.

Reasoning

The court found the child would grow up in a loving and supportive family setting, with the Applicant already bonded to the child who views her as a parent, and the child benefiting from joining an established sibling group.

p. 2

Legal principles established

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  • A female applicant may adopt a male child where special circumstances exist under Section 158(2)(b) of the Children Act, including demonstrated prior parental commitment and professional engagement with children.

Court orders

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  1. 1.Grant of prayers 1 to 4 of the Originating Summons filed on 26th October 2018 (adoption orders in favour of the Applicant)

Authorities

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Legislation

  • Children ActSection 158(2)(b)
  • Children ActSection 4(3)
  • Constitution of KenyaArticle 53
  • Adoption Committee Guidelines for Special Circumstancesitems 3 and 5
Jurisdiction invoked
Children Act, adoption jurisdiction (Section 158)

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 VN alias VW", Case Analysis (2020). Originating Summons filed 26th October 2018 (Nairobi Adoption Cause; Care and Protection Case No. 13 of 2016 referenced). Source:

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