In re Adoption of Child W. by JGKK and TCK

High Court of Kenya

6 February 2020

AMA.O. Muchelule

625 words in judgment

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The bottom line

If biological parents cannot be traced, the High Court of Kenya can grant an adoption order based solely on the child's best interests.

What this practically means

Executive summary

JGKK and TCK, a Kenyan couple married under Kipsigis customary law since 1991, filed an originating summons on 6th March 2012 seeking to adopt child W, found abandoned near the casualty area of Kenyatta Hospital on 29th April 2010. The child, presumed born on 11th October 2009, was placed at Thomas Barnardo Children's Home, committed to the Home by the Nairobi Children's Court in Protection and Care number 222/2010, declared free for adoption by Kenya Children's Home Adoption Society on 8th February 2011, and placed with the applicants for bonding on 17th February 2011. On 19th September 2012 the court appointed Livingstone Kipngetich Rono as guardian ad litem and directed him and the Director of Children Services to file social inquiry reports within 45 days. Both reports recommended the adoption, finding the applicants socially, emotionally and financially stable and suitable, and that the child had bonded well with them. The court found adoption to be in the child's best interest, noted that the applicants would assume all parental rights and obligations of the biological parents and treat the child as born to them, and that the adoption order would be final and binding during the child's lifetime. Consent of the biological parents or relatives was dispensed with as they had never been traced despite police efforts. The court allowed the adoption, renamed the child TKT, fixed his date of birth as 11th October 2009 and presumed him Kenyan by birth, appointed WKK as legal guardian, directed entry in the Adopted Children Register, and discharged the guardian ad litem.

Key legal issues

Best interest of the child in adoption

Holding

The court found adoption by the applicants to be in the child's best interest, the applicants having demonstrated ability to provide a conducive home and family environment.

Reasoning

The court relied on the guardian ad litem's report and the Director of Children Services' report, both of which found the applicants socially, emotionally and financially stable and suitable to adopt, and found that the child and applicants had bonded well since placement on 17th February 2011.

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Dispensation of parental consent

Holding

Consent of the biological parents or relatives was dispensed with because they were never traced.

Reasoning

The child was found abandoned at Kenyatta Hospital with an antenatal card; police efforts to trace the mother and relatives were unsuccessful, and the child had been declared free for adoption by a registered adoption society before placement with the applicants.

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Legal principles established

Once an adoption order is made it is final and binding during the lifetime of the child, and adoptive parents assume all parental rights and obligations of the biological parents.
Consent of biological parents or relatives may be dispensed with where they have never been traced despite police efforts.

Court orders

1.The applicants JGKK and TCK are allowed to adopt child W
2.The child shall henceforth be known as TKT
3.The child's date of birth shall be 11th October 2009, presumed born at Kenyatta National Hospital in Kenya and presumed Kenyan by birth
4.WKK is appointed the child's legal guardian in the event of death or incapacity of the applicants before he is of full age and fully self-reliant
5.The Registrar-General is directed to enter this adoption in the Adopted Children Register
6.The guardian ad litem is discharged

Jurisdiction invoked: Children Act (local adoption jurisdiction)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Adoption of Child W. by JGKK and TCK", Case Analysis (2020). Originating Summons dated 20th January 2012. Source:

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