In re Adoption of Baby BR (now known as BCP)

High Court of Kenya

12 August 2020

OSOLGA SEWE

722 words in judgment

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The bottom line

If a child is found in Kenya under eight and their nationality is unknown, Kenyan law presumes they are a citizen by birth.

What this practically means

Executive summary

This was a Chamber Summons dated 22 August 2019 filed by LAP under Article 14(4) of the Constitution and Sections 4(2) and (3) and 5 of the Children Act, No. 8 of 2001, in an adoption cause before the High Court at Eldoret. The applicant sought a declaration that Baby BR (now known as BCP), the child she had adopted, be presumed a Kenyan citizen by birth, and an order authorising the Director of Immigration to issue the child with a Kenyan passport. The application was supported by the applicant's affidavit deposing that the child was born and abandoned soon after birth in Eldoret Town, that an adoption order was issued on 13 April 2006, and that the child was thereafter issued with a Kenyan passport on 30 June 2011 which the Immigration Department declined to replace with the new generation passport unless a court order declared the child a Kenyan citizen by birth. The court reproduced Article 14(4) of the Constitution, which presumes a child found in Kenya under eight years of age, whose nationality and parents are not known, to be a citizen by birth, and Section 4 of the Children Act on the best interests of the child as the first and paramount consideration. The court found the child was 7 years old when issued her first passport and therefore entitled to the presumption of citizenship, and entitled to the rights in Section 22 of the Kenya Citizenship and Immigration Act, No. 12 of 2011, including the new generation passport. The application was allowed in its entirety: the court declared the child a Kenyan citizen by birth and authorised the Director of Immigration to issue her with a new generation Kenyan passport. No costs order was made.

Key legal issues

Presumption of citizenship by birth under Article 14(4)

Holding

The child was entitled to the presumption of citizenship by birth, having been found in Kenya and under eight years of age when issued with her first Kenyan passport.

Reasoning

The court found the child was adopted pursuant to a court order issued on 13 April 2006 and was issued a Kenyan passport on 30 June 2011 when she was 7 years old, hence under eight years of age and entitled to the Article 14(4) presumption of citizenship by birth.

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Entitlement to a new generation passport

Holding

As a presumed citizen by birth, the child is entitled to the rights in Section 22 of the Kenya Citizenship and Immigration Act, including the documents in Section 22(g), i.e. the new generation passport.

Reasoning

Having established the child's presumed citizenship by birth, the court held there was no question that she was entitled to the rights set out in Section 22 of the Kenya Citizenship and Immigration Act, No. 12 of 2011, including the new generation passport, and that granting the orders was in the child's best interests.

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Legal principles established

A child found in Kenya under eight years of age whose nationality and parents are not known is presumed to be a citizen by birth under Article 14(4) of the Constitution.
In all actions concerning children, the best interests of the child shall be a primary consideration, and judicial institutions exercising powers under the Children Act must treat the child's interests as first and paramount.

Court orders

1.A declaration that Baby BR (now known as BCP), the child the subject of this adoption cause, is a Kenyan citizen by birth
2.That the Director of Immigration be and is hereby authorized to issue the child with a new generation Kenyan passport

Jurisdiction invoked: Article 14(4) of the Constitution; Section 4(2) and (3) and Section 5 of the Children Act, No. 8 of 2001

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Adoption of Baby BR (now known as BCP)", Case Analysis (2020). Chamber Summons dated 22 August 2019 (adoption cause, Eldoret). Source:

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