High Court 17155 of 2025

Evidence 4. PW1 was the legal guardian, IMK. He testified that he was the son of the Applicant. He knew the child as his sister and would take care of her as such in case anything happened to the Applicant. 5. PW2 was Josephat Kamau Gatimu. He was the guardian ad litem. According to him, he knew the Applicant since 2008. She was a head teacher at a school he was a parent. He relied on his report dated 9.2.2025. 6. PW3 was the Applicant. She introduced herself as Mary Kanini Muturi. Her basic salary as teacher was Ksh. 58,840/=. She was 58 years. She had stayed with the child since 2021 taking care of her. She took the child when the child was 1 year old. She was single and had one son, 25 years old and now the child. Analysis 7. The issue is whether the court should allow the adoption herein. This Court has the authority to make an adoption order. The relevant provisions of the law governing adoption in Kenya are found under section 183 of the Children’s Act No. 29 of 2022, which sets out the Court’s power to make adoption orders as follows: (1) Subject to this Act, the High Court may, on an application made in the prescribed form, make an order, in this Act referred to as "adoption order", authorising an applicant to adopt a child. (2) All proceedings under this Part shall be heard and determined in chambers, and the identity of the child and the applicants shall be kept confidential. (3) In this Act, adoption means local, kinship and foreign adoption. (4) For the purposes of this Part— (a) "kinship adoption" has the meaning assigned to it in section 2; (b) "local adoption" means an adoption in relation to which the child is resident in Kenya; and (ii) the adopting parent or parents are Kenyan nationals resident in Kenya; and (c) 8. "foreign adoption" means an adoption in relation to which — (i) the adopting parent or parents are Kenyan nationals with dual citizenship; (ii) the adopting parent or parents are foreign nationals whether or not resident in Kenya; (iii) the adopting parent or parents are not Kenyan nationals but are biologically related to the child; or (iv) the adopting parent or parents were once Kenyan nationals but have lost their nationality by operation of the law of the host country to which the prospective parent or parents have a nationality Pre-requisites for Adoption are also stated under the section 184 of the Children Act, 2022 as follows: (1) A person shall not commence any arrangements for the adoption of a child unless— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17155/eng@2025-11-20 2

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9. 10. (a) the Council, in accordance with the rules, has declared the child free for adoption; and (b) the child has attained the age of six weeks. (2) A person, including a parent, guardian or adoption society, shall not, prior to the making of an adoption order, entrust a child to the care, possession or control of any person not qualified to adopt a child in accordance with this Act. (3) An applicant shall not preselect a prospective adoptive child except— (a) in the case of kinship adoption; (b) Where the applicant is a foster parent seeking to adopt a fostered child under the applicant’s care. (4) The Secretary shall monitor and submit reports to the courts on the wellbeing of a child who is subject to adoption proceedings. (5) Any person who contravenes subsections (1) or (2) of this section commits an ofience and shall, on conviction, be liable to imprisonment for a term not exceeding n shillings, or to both Section 185, of the Children’s Act, 2022, provide for the children who may be adopted. The same states as follows: (1) Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was born in Kenya. (2) Without prejudice to the generality of subsection (1), no Court may entertain an application for an adoption order in respect of a child unless— (a) the child concerned has been in the continuous care and control of the applicant within Kenya for a period of three consecutive months preceding the filling of the application; and (b) the application for an adoption order is supported by a report made by a duly registered adoption society recommending that an adoption order be made. (3) The report referred to in subsection (2)(b) shall contain the society’s findings and recommendations in respect of the child and the applicant or applicants, as the case may be. (4) The following children shall be eligible for adoption— (a) a child who is an orphan and has no guardian or caregiver able and willing to take care of the child; (b) a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year; (c) children who are willingly ofiered for adoption by their biological parents in accordance with regulations made under this Part. Section 186 of the Children’s Act, 2022, provide for a person or persons who may apply to adopt a child, the following is the law: (1) The Court may make an adoption order on application by— (a) a sole applicant; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17155/eng@2025-11-20 3

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(b) (2) The Court shall not make an adoption order in any case unless— (a) the applicant has attained the age of twenty-five years, but is not above the age of sixtyfive years; and (b) the applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child. (3) The restrictions in subsection (2) shall not apply in any case where a sole applicant or one of the joint applicants is the mother, father or relative of the child. (4) The Court shall not make an adoption order in favour of a sole male applicant, unless the applicant is a blood relative of the child. (5) The Court shall not make an adoption order in favour of the following persons unless the Court is satisfied on reasons to be stated on the record that there are special circumstances that warrant the making of the adoption order an applicant or joint applicants who has, or both have, attained the age of sixty-five years. (6) The Court shall not make an adoption order in favour of an applicant or joint applicants if the applicant or joint applicants, or any of them— (a) is of unsound mind within the meaning of the Mental Health Act (Cap. 248); (b) is incapable of exercising proper care and guardianship of a child; (c ) has been convicted by a Court of competent jurisdiction for any of the ofiences specified in the Third Schedule or similar ofiences; (d) in the case of joint applicants, if the applicants are not married to each other; (e) is a sole male applicant except where the applicant is a biological relative of the child; or (f) is a foreign applicant except where the applicant is a biological relative of the child. (7) Notwithstanding anything contained in this section the Court may at its sole discretion decline to make an adoption order in favour of any person or persons if the Court is of the view that it is not in the best interests of the child to make the order. (8) Subject to the provisions of this section, an application for an adoption order in respect of a child shall be accompanied by written consents of the following persons— (9) 11. two spouses jointly. (a) a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child; (b) on the application of one of the spouses, the consent of the other spouse; and (c) in the case of a child who has attained the age of ten years, the child himself or herself. If the child referred to in subsection (8)(c) has a disability which restricts or impairs the child’s ability to independently give his or her consent, the child shall be accorded such assistance, including the assistance of an intermediary, to facilitate his or her written consent. In light of the above law, the court heard the relevant parties who testified in court as PW1, PW2 and PW3 and also perused all the documents filed in court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17155/eng@2025-11-20 4

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12. The Report by the Guardian ad Litem dated 26.5.2025 and the Report by the Children Officer dated 9.2.2025, Child Welfare Society of Kenya Declaration and social inquiry reports dated 10.3.2025 and the Children Officer’s Report dated 15.10.2025 were filed in court certifying the applicant as meeting the legal parameters to adopt the minor herein. 13. The court also heard IMK and Josphat Kamau Gatimu respectively as legal guardian and guardian ad litem of minor who testified that the Applicant was fit to adopt the child and they vouched for her adoption with assurance that they would give play their role for the welfare of the minor. The Applicant, adoptive mother of the minor also testified that she took the child having been abandoned two weeks after her birth when the child was 1 year old in 2021 and had in fact nurtured and enrolled the child in school. 14. All the evidence supports granting the Applicant an unequivocal green light for the adoption. In furtherance of the minor’s best interests, these considerations justify and reinforce the approval of the adoption. 15. The Applicant, as demonstrated by the evidence on record, has met all the legal requirements for adoption. There is no doubt that this adoption is driven by genuine intentions to protect, support, provide for, and secure inheritance rights for the child. 16. The reports by both the Children’s Officer and the Guardian ad Litem also recommend that the Applicant be allowed to adopt the minors. They describe the Applicant as committed and capable of caring for and maintaining the child, noting that she has already been solely responsible for the child’s upkeep. They are of the view that the adoption sought herein will serve the child’s best interests. 17. Thereof, the Application for adoption is merited and I allow it. Determination 18. In the upshot, I make the following Orders: i. The Applicant is authorized to adopt the child Baby S. ii. The consent of the biological parents is dispensed with as the child was abandoned. iii. The said child will be known as SWM. iv. The Registrar General shall make the appropriate entry of SWM in the Adopted Children’s Register. v. The child SWM is presumed to be a Kenyan citizen by birth. vi. IMK is appointed as legal guardian of SWM. vii. The guardian ad litem is hereby discharged. viii. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI, ON THIS 20TH DAY OF NOVEMBER, 2025. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17155/eng@2025-11-20 5

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No Appearance by the Parties. Court assistant: Michael M.D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17155/eng@2025-11-20 6

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