In re Adoption of Baby BZW by NNW

High Court of Kenya

14 July 2020

GDGeorge Dulu

569 words in judgment

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The bottom line

A Kenyan court allowed an adoption by a relative living abroad, confirming it was a local adoption and meeting all legal requirements.

What this practically means

Executive summary

The High Court at Nairobi (Dulu J) allowed an Originating Summons dated 3rd March 2019 seeking the adoption of Baby BZW, a boy born on 5th December 2014 whose mother, ENW, is deceased. The applicant, NNW, is the child's paternal aunt, being a sister of the father KMW. The application was brought under Sections 157 and 160 of the Children Act 2001 and Legal Notice No. 75 of 2002. The court considered the report of the Director of Children Services dated 26th August 2019, which concluded the adoption was in the child's best interests, and the positive recommendation of the guardian ad litem, BAO. Two issues arose. First, although the applicant resides and works in the United States, the court held the adoption was a local one, since she holds dual Kenyan and US citizenship and there was no suggestion the child would move permanently from Kenya; it therefore did not fall within the definition of international adoptions under Section 162 of the Children Act. Second, Section 158(2)(b) bars an adoption order in favour of a sole female applicant in respect of a male child unless special circumstances exist. The court found such circumstances in the close kinship between applicant and child, the applicant's marriage and family, the death of the child's mother, and the father's problem of drunkenness, concluding the adoption would provide the parental support and guidance needed for the child's upbringing. The court allowed the summons, authorized the adoption, directed the Registrar General to enter the child (to be called BZW) in the Adopted Children's Register, and appointed SLW as legal guardian in the event of the applicant's death or incapacity. The judgment was delivered on 14th July 2020 and transmitted by email due to the COVID-19 pandemic.

Key legal issues

Classification of the adoption as local or international

Holding

The adoption is a local adoption despite the applicant residing and working in the USA, because she holds dual Kenyan and US citizenship and there is no suggestion the child will move permanently to the USA.

Reasoning

The court applied the definition of international adoptions under Section 162 of the Children Act. Since the applicant is a Kenyan citizen as well as a US citizen, and no permanent relocation of the child was suggested, the statutory definition of international adoption was not met.

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Special circumstances under Section 158(2)(b) for a sole female applicant adopting a male child

Holding

Special circumstances existed: the applicant is a close relative (paternal aunt), is married with a family, the biological mother is deceased, and the biological father has a problem of drunkenness; the adoption serves the child's best interests.

Reasoning

The court considered the statutory bar in Section 158(2)(b) against a sole female applicant adopting a male child absent special circumstances. It found those circumstances in the kinship relationship, the applicant's marriage and family, the mother's death and the father's drunkenness, concluding the adoption would provide needed parental support and guidance.

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Best interests of the child

Holding

The adoption is in the child's best interests, as confirmed by the Director of Children Services report dated 26th August 2019 and the guardian ad litem's positive recommendation.

Reasoning

The court relied on the statutory reports: the Director of Children Services concluded the adoption was in the child's best interests, and the guardian ad litem BAO recommended it positively. The court found the adoption would enable the child to get parental support and guidance important for his upbringing and growth to a responsible adult.

p. 2

Legal principles established

An adoption by a Kenyan citizen with dual citizenship residing abroad, where the child will not move permanently from Kenya, is a local adoption, not an international adoption under Section 162 of the Children Act.

Court orders

1.The applicant NNW be and is hereby authorized to adopt BABY BZW and the child be called BZW henceforth
2.The Registrar General do make appropriate entries in the Adopted Children's Register in respect of BZW
3.SLW be and is hereby appointed as legal guardian of BZW in the event of death or incapacity of the applicant

Jurisdiction invoked: Sections 157 and 160 of the Children Act 2001 and Legal Notice No. 75 of 2002

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Adoption of Baby BZW by NNW", Case Analysis (2020). Originating Summons dated 3rd March 2019. Source:

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