In re Adoption of Baby PB (DWM & SNN - Applicants)

High Court of Kenya

6 March 2020

AOASENATH ONGERI

600 words in judgment

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The bottom line

To legally adopt a child in Kenya, applicants must prove they meet all statutory fitness requirements and that abandonment has been legally established.

What this practically means

Executive summary

DWM and SNN, a married couple (married on 8.6.2013 in Nairobi) with one biological child, sought by Originating Summons dated 29.5.2019 authority to adopt Baby PB, an abandoned child, and to name her VMW. The child was abandoned at Kenyatta National Hospital on 10.1.2018 by a biological mother referred there from Kiambu Hospital after post-partum hemorrhaging. The matter was reported to the hospital police post, and the Nairobi County Children Officer placed the child at Nest Children's Home, where she was admitted on 25.5.2018 and formally committed by the Nairobi Children's Court on 20.6.2018 in Protection and Care Case No. 308 of 2018. Police confirmed by letter dated 11.10.2018 that the biological mother could not be traced, and the child was declared free for adoption by Change Trust Adoption Society on 22.11.2018 under Section 159(1)(a)(i) of the Children Act, which presumes abandonment where a parent has not been seen or heard from for at least six months. Three reports supported the application: the Guardian Ad Litem's Report (25.7.2019), the Change Trust Report (17.3.2019) and the Director of Children's Services Report (16.9.2019). The Applicants demonstrated financial capacity, clean police records and physical and emotional fitness. Asenath Ongeri J found the Applicants met the adoption threshold and allowed the originating summons, authorizing the adoption, naming the child VMW with a deemed date of birth of 1.1.2018 and place of birth Kiambu County, presuming Kenyan citizenship, directing registration of the adoption order, authorizing issuance of a Kenyan passport, appointing GGN as legal guardian, and discharging the Guardian Ad Litem.

Key legal issues

Whether the Applicants meet the threshold for adoption

Holding

The court found the Applicants met the threshold and allowed the originating summons

Reasoning

The court considered the affidavit and the three statutory reports (Guardian Ad Litem, Change Trust, and Director Children's Services) filed in support, together with evidence of the Applicants' financial capacity, police clearance certificates and medical reports showing fitness to adopt, and concluded the statutory threshold was satisfied.

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Whether the child was free for adoption by reason of abandonment

Holding

The child was declared free for adoption on the presumption of abandonment under Section 159(1)(a)(i) of the Children Act

Reasoning

The child was abandoned at Kenyatta National Hospital on 10.1.2018, the matter was reported to police, the child was committed to Nest Children's Home by the Nairobi Children's Court, and police confirmed by letter dated 11.10.2018 that the biological mother could not be traced, satisfying the six-month presumption of abandonment.

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Legal principles established

Abandonment may be presumed where a child appears abandoned at birth or where a parent or guardian has not been seen or heard from for at least six months, under Section 159(1)(a)(i) of the Children Act

Court orders

1.The 1st and 2nd Applicants DWM and SNN authorized to adopt Baby PB
2.The child shall be known as VMW
3.The date of birth of the child shall be 1.1.2018 and place of birth Kiambu County
4.The child shall be presumed to be a Kenyan Citizen
5.The Registrar General directed to enter the adoption order in the Adopted Children Register
6.The Director Immigration authorized to issue the child with a Kenyan passport
7.GGN appointed legal guardian of the child in case of incapacity of the Applicants before the child attains majority
8.The Guardian Ad Litem discharged

Jurisdiction invoked: Children Act, Section 159(1)(a)(i) - adoption jurisdiction under the Children Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Adoption of Baby PB (DWM & SNN - Applicants)", Case Analysis (2020). Originating Summons dated 29.5.2019. Source:

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