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High CourtAllowedOriginating Summons filed 18th December 2018

In re Adoption of Baby BM alias BN (FWW - Applicant)

High Court of Kenya
2 October 2020
774 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court allowed the adoption because the child's best interests were served by the stable, loving home provided by the applicant.

What this practically means

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Executive summary

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This was an originating summons for local adoption of a male minor, BM alias BN, presumed born in 2013 and found abandoned at JF Church Kayole on 2 October 2016. A report was made to Kayole Police Station and the child was admitted to Imani Children Home Eastleigh, later committed there by the Children's Court in Protection and Care Case No. 441 of 2017. Efforts to trace his parents failed. Buckner Kenya Adoption Services declared him free for adoption on 15 October 2017, and following a care agreement of 19 November 2017 he was placed with the Applicant, FWW, a 45-year-old single female unable to have biological children. On 28 May 2019 the court appointed GVC as guardian ad litem and directed reports; all reports were positive and recommended the adoption. The court found the Applicant mature, emotionally and financially stable, with a strong family support network, and found that she and the child had bonded well, the child thriving in school. Applying Article 53 of the Constitution and Section 4(3) of the Children Act, the court held the adoption served the child's best interests. Although a single female adopting a male child ordinarily requires special circumstances under Section 158(2)(b), the court found such circumstances in the child's abandonment, the absence of any other prospective adopter, and the three years of bonded care, meeting requirement No. 5 of the Adoption Committee Guidelines of January 2010. The Originating Summons filed 18 December 2018 was allowed in terms of prayers 1 to 6.

Key legal issues

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01

Whether special circumstances exist under Section 158(2)(b) for a single female to adopt a male child

Holding

Special circumstances existed: the child was abandoned, aged 3 at abandonment, no other person had expressed a desire to adopt him, and he had bonded with the Applicant over three years of care.

Reasoning

The court noted the child was abandoned at JF Church Kayole, committed to Imani Children Home, and declared free for adoption. No other prospective adopter came forward. The child had lived with the Applicant for three years, bonded well, and removing him would condemn him to institutional care contrary to his interests. The case met requirement No. 5 of the Adoption Committee Guidelines of January 2010.

p. 2
02

Whether the Applicant is a suitable adoptive parent

Holding

The Applicant was found mature, emotionally and financially stable, with a supportive family network, and capable of providing for and caring for the minor.

Reasoning

The guardian ad litem and Children Officer reports were positive and recommended the adoption. The Applicant, a 45-year-old single female earning about KShs.30,000 monthly and owning land, had exercised parental responsibility since 2017, and the child was thriving, enrolled in school and performing well.

p. 2

Legal principles established

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  • In adoption applications the court must uphold the best interests of the child, per Article 53 of the Constitution and Section 4(3) of the Children Act.
  • An adoption order for a single female applicant adopting a male child may be made where special circumstances exist under Section 158(2)(b).

Court orders

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  1. 1.The Originating Summons filed on 18th December 2018 is allowed in terms of prayers 1 to 6
Jurisdiction invoked
Children Act, Sections 158 and 159 (adoption jurisdiction); Article 53 of the Constitution

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 BM alias BN (FWW - Applicant)", Case Analysis (2020). Originating Summons filed 18th December 2018. Source: 

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