Njm & 1 other v Family & 1 other

7. In their submissions dated 17th July 2024 the Applicants contended that the evidence on record clearly indicated that the rights of the minor will be best served if the application is allowed and that the court ought to take into account the Children’s Officers report and in particular the interview given by the minor. 8. They submitted that this court had the requisite jurisdiction to entertain this claim taking into consideration the peremptory directives of Article 53(2) of the Kenyan Constitution. 9. That pursuant to the provisions of Section 187 of the Children’s Act the consent from the Interested Party must be dispensed with since he has never been a party to the life of the minor unlike the Applicants. 10. They submitted that through the evidence from the record and especially from the Director of Children’s Services they had demonstrated the capacity to adopt the minor and therefore the petition be allowed. 11. The Interested Party on the other hand submitted that there were no genuine and compelling reasons why the Applicants wanted to adopt the minor save for very flimsy ones. 12. He stated that he has been denied the reach of the minor as the 2nd Applicant left for Kenya immediately and it became difficult to access the minor. 13. He said that the Applicants had no financial capacity to support and maintain the minor as they have not proved any financial capacity. 14. He also submitted that this was his only child and was not sure of ever siring another child in his life. Analysis And Determination 15. What is not in dispute is the paternity of the minor. At the same time, it is not in dispute that the minor is an American citizen and currently in America. 16. So, the first issue to determine is on jurisdiction. Is this court clothed with the necessary jurisdiction to deal with the matter based on the above undeniable fact that the minor is not within this jurisdiction and more importantly an American citizen? 17. It is the Applicant’s contention that this court has all the necessary capacity and jurisdiction to entertain and therefore issue the adoption orders. 18. I have perused the record and it is not disputed that the superior court of New Jersey in America already adjudicated over the matter between the minor and the parties and directed that; 19. “ (a) Parties to share joint legal custody. (b) The 2nd Applicant granted resident custody. (c) Objector granted visitation every other weekend from Friday 4pm to Sunday 7pm. (d) Neither party can take the child out of the country without the written permissions of the other party or the court.” As it appears now the minor, the 2nd Applicant and Interested Party are back in the States. It is only the 1st Applicant who is within this jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17097/eng@2025-11-20 2

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20. Further the 2nd Applicant is an American citizen as well. It therefore means that the court will be overarching if it goes ahead and determine an adoption process over a none Kenyan citizen. 21. It is true that Article 53(1) of the Constitution as well as Section 31 of the Children’s Act 2022 are comprehensive on the rights of the child, namely, that it overrides all other interests. Nonetheless and as stated above the minor is no longer within the jurisdiction of this court but away in her country. Making the orders will in effect stretching this courts powers unnecessarily. 22. The argument however by the Applicants is to the effect that this was an adoption within the family set up based on the marriage between the Applicants. They argue that the Interested Party has never been in the life of the minor and therefore the best interest of the child shall be served as envisaged under Section 8(1) of the Children’s Act. 23. Whereas this may have been true I am not persuaded that it is sufficient reason to permit the consent of the Interested Party not to be sought. The Interested Party claimed that as soon as the minor was born the 2nd Applicant left the United States and he was unable to reach her. 24. The suit pending in the New Jersey court in my view is evident enough of the effort made by the Interested Party to reach out to the 2nd Applicant. 25. The same is replicated in the back-and-forth correspondences on renewal of the minor’s passport. If the Interested Party was not within the scene as the Applicant is claiming then there would not have been need to seek his consent to renew her passport. 26. It is entirely therefore not true that his “whereabouts is unknown and he has never bothered to be in the child’s life”. 27. I have read the reasons the Applicants gave to the Children’s Officer during the interview for adopting the minor and part of it included.; “ It will cement their union and strengthen their commitment to each other ….” 28. Whereas the above reason appears plausible I do not think it is sufficient to warrant such an adoption. The parties have close to 10 years stayed with the minor and supported her as a step father and mother respectively. The minor is already aware that the 1st Applicant is not her father and that her father is somewhere and she will” tell them” the right time to meet him. 29. The lines in my view are well drawn. The minor has not lacked any parental love in the arrangements subsisting. It is only the adults who wishes to have their way which in my view will not alter much. She will still remain the 1st Applicants step child but forever the biological child of the Interested Party. 30. The Applicant’s submitted that the Interested Party ’s objection was based on reasons that were too pedestrian, I respectfully disagree. He submitted that this was his only known child and taking her away by adoption process shall render him suffer greatly as he was never sure of having another child in his life. 31. Of course, this is almost a quasi-legal cum moral issue but I find it germane in these circumstances. If for example the minor was in such a distress or in danger or abandoned or the parents could not be traced or an orphan or such other reasons to warrant adoption, then the court will have considered overriding objective of the rights of the child. 32. The case at hand does not present itself in that manner. The minor gladly is comfortable in the hands of the Applicants and the only issue between the Interested Party and the minor is access. I do not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17097/eng@2025-11-20 3

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understand the Applicant to suggest that he wishes to have the actual custody of the minor. In any case he has not been with her for years. 33. Based on the above perspective it will be extremely legally and morally prejudicial to allow the Applicants adopt the minor without obtaining the consent from the Interested Party. They can have custody of the minor while the Interested Party may have limited access as directed by the court in New Jersey. 34. So, for the reason of jurisdiction in the first instance I decline to allow the application for adoption without the consent of the Interested Party. 35. Secondly and without prejudice to the above the Applicants have not demonstrated why they wish to adopt the minor whom they have comfortably supported over the years and who is almost transiting to the age of majority. 36. For the above reasons the Originating summons dated 22nd July 2022 together with any other order is hereby dismissed with no order as to costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 20TH DAY OF NOVEMBER 2025. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17097/eng@2025-11-20 4

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