High Court 632 of 2026

2. This case presents a significant legal conundrum that strikes at the heart of the intersection between statutory interpretation, constitutional rights, and the evolving nature of the family unit in a globalized society. The core legal issue to be determined is the eligibility of a mixed-nationality couple—where one spouse is a Kenyan citizen and the other a foreign national resident in Kenya—to adopt a Kenyan child under the regime of the Children Act, 2022. 3. Specifically, the Director of Children’s Services (DCS) has raised a preliminary objection based on Section 186(6)(f) of the Children Act, which ostensibly prohibits adoption orders in favour of foreign applicants who are not biological relatives of the child. This Court, therefore, must not only determine the suitability of the Applicants but also provide a reasoned interpretation of the statute to resolve the apparent conflict between the restrictive provisions of the Act and the constitutional imperative of the best interests of the child. The Applicants 4. The 1st Applicant is an adult male of sound mind. He is holder of Kenyan National ID No 25XXXXXXXXX38. He was born in December 1988 in Nairobi and is currently 37 years old. The 1st Applicant is a pilot. His financial standing, as deposed in his Affidavit and supported by payslips, indicates a stable and sufficient income to cater to the needs of the child. 5. The 2nd Applicant is an adult female of sound mind. She is a British national, evidenced by her British Passport Number 12XXXXXXX63. However, she is also a long-term resident of Kenya, holding a Republic of Kenya Foreigner Certificate (Alien ID) Number 1XXXXXX4. She was born in 1978 in the United Kingdom and is currently 46 years old. She is a teacher by profession, employed at Kenton College Preparatory School in Kileleshwa, Nairobi, where she has served for over 8 years. She avers that she intends to apply for Kenyan citizenship, having met the residency requirements and being married to a Kenyan citizen. 6. The history of the Applicants' relationship is relevant to establishing the stability of the proposed adoptive home. They met in the United Arab Emirates in 2011, where they were both working—the 1st Applicant in the hospitality and aviation sectors, and the 2nd Applicant in education. They have been in a committed relationship for approximately 14 years. They relocated to Kenya together in 2018 to establish their permanent home. 7. Their union was formalized under Kenyan law on 22 July 2019, as evidenced by the Certificate of Marriage. This confirms they have been married for over 5 years, satisfying the marital stability requirements often looked for in adoption proceedings. 8. The Applicants are blessed with one biological child, a daughter born in 2020. They reside as a family unit in Kileleshwa, Nairobi, in staff housing provided by the 2nd Applicant’s employer. The home environment has been described in the social inquiry reports as spacious, secure, and conducive to child-rearing. 9. The motivation for this adoption, as articulated in their joint statement, is to expand their family and provide a sibling for their biological daughter. They further aver that they are financially capable, physically healthy, and have no criminal records, facts which are corroborated by the annexed Police Clearance Certificates. The Child 10. The child (female) was found abandoned on 22 April 2024. The discovery was made by 3 good Samaritans, who found the child dumped in a pit along TRM Drive, Nairobi County. They https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/632/eng@2026-01-30 2

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immediately rescued the child and reported the matter to the Kasarani Police Station, where the occurrence was booked vide OB Number 39/22/04/2024. 11. The child was placed in the care of Happy Life Children’s Home on the same day. A medical assessment conducted at the time estimated her age to be approximately one day old, leading to a presumed date of birth of 21 April 2024. 12. On 15 January 2025, the Children’s Court at Nairobi, in Protection and Care Case No. E601 of 2024, formally committed the child to the care of Happy Life Children’s Home for a period of 3 months, pursuant to the provisions of the Children Act. Extensive efforts were made to trace the biological parents or relatives of the child. The Kasarani Police, in a letter dated 17 March 2025, confirmed that investigations had been carried out but bore no fruit. No person had come forward to claim the child, and the identity of the mother remained unknown. 13. On 19 March 2025, the child was declared free for adoption and Certificate No. 1064 was issued by Kenya Children’s Homes Adoption Society. 14. The child was subsequently placed in the foster care of the Applicants on 11 April 2025. The child has been in their continuous care and control for a period exceeding 5 months prior to the hearing of this matter, thereby satisfying the statutory fostering period of 3 months prescribed by Section 187 of the Children Act. The Adoption Application 15. I have considered the Summons, the evidence on record, as well as the various reports filed. 16. The duty of this Court is to analyse the material before it to determine whether the Applicants are suitable adoptive parents. The Applicants stated that they are committed Christians and intend to raise the child in a Christian development to ensure full spiritual development. 17. The eligibility of the Applicants constitutes the gravamen of the present Application. The Applicants have applied jointly as husband and wife. The 1st Applicant is a Kenyan citizen, while the 2nd Applicant is a British citizen. 18. Section 186(1) of the Act permits an adoption application by two spouses jointly. The Applicants, having been married in 2019, satisfy this requirement. Section 186(2) sets the age parameters for adopters and the age gap. The 1st Applicant is 37 years old, and the 2nd Applicant is 46 years old. Both are well within the eligible age bracket and are more than 21 years older than the child. 19. However, the Director of Children’s Services has objected to the adoption citing Section 186(6)(f) of the Children Act. It is necessary to set out the provision in full: 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— ... (f) is a foreign applicant except where the applicant is a biological relative of the child 20. The DCS correctly interprets this section to mean that because the 2nd Applicant is a foreigner and not a biological relative, she is absolutely barred from adopting the child. Furthermore, since the application is joint, the disqualification of one applicant would ostensibly disqualify the couple entirely. 21. If this Court were to apply a strict, literal interpretation of Section 186(6)(f), the application would indeed be doomed to fail. However, such an interpretation would lead to an absurdity that conflicts with The Constitution and the very purpose of the Children Act. It ignores the reality of mixed- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/632/eng@2026-01-30 3

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nationality families residing in Kenya and elevates a procedural safeguard against child trafficking into an insurmountable barrier against legitimate family formation. 22. To properly interpret Section 186(6)(f), one must look at the definitions of adoption types under Section 183(4) of the Act: (b) "local adoption" means an adoption in relation to which— (i) the child is resident in Kenya; and (ii) the adopting parent or parents are Kenyan nationals resident in Kenya; (c) "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... 23. The Act creates a rigid dichotomy. It envisions adopters as either entirely Kenyan or entirely foreign. It does not explicitly account for a mixed-nationality couple, one Kenyan, one foreigner, who are both resident in Kenya. The 2nd Applicant falls under the definition of foreign adoption by virtue of Section 183(4)(c)(ii) ("foreign nationals whether or not resident in Kenya"). However, the 1st Applicant falls under local adoption as a Kenyan national resident in Kenya. 24 The question then arises: Does the foreign status of the wife extinguish the local status of the husband? Or does the Kenyan status of the husband, combined with the couple's residence in Kenya, localize the application? 25. This Court is not the first to grapple with the complexities of adoption by mixed-nationality couples or resident foreigners in the face of restrictive statutes. In the case of In re LMG (Child) (Adoption Cause E184 of 2022) KEHC 18227 (KLR), Hon. Magare, J. was faced with a nearly identical fact pattern: a Kenyan male applicant married to a Spanish female applicant. The Court faced the same statutory hurdle. In a well-reasoned judgment, Justice Magare held: “ The adoption is not intercountry. By operation of section 186 (e) the Kenyan National cannot apply for adoption as a sole male applicant. By dint of section 186 (6) the female applicant herein being a foreign national cannot apply as a sole applicant. However, the joint application qualifies them for the defects in the sole male applicant status are cured by the marriage. On the other hand, the marriage to the Kenyan national stabilizes the adoption as a local adoption in spite of the female applicant being a foreign national." (Emphasis added). 26. This Court fully associates itself with the reasoning in In re LMG. The marriage acts as a stabilizing factor. The intent of the legislature in restricting foreign adoptions (and the 2014 Moratorium that preceded the Act) was to curb inter-country adoptions where children are removed from the jurisdiction to foreign lands with little oversight, often leading to a loss of cultural identity. The restriction was never intended to punish Kenyan citizens who choose to marry foreigners and establish their families within Kenya. 272. Similarly, in In re MS a.k.a NASN (Baby) (Adoption Cause E010 of 2023) KEHC 21690 (KLR) , Hon. Mutai, J. dealt with an adoption application by a Kenyan citizen and his American wife. The Court considered the moratorium on foreign adoptions and the status of the applicants. The Court noted: “ In this case the 2nd applicant is married to the 1st applicant who is a Kenyan citizen. She has been a resident in Kenya for the last seven years... They are permanently based in Kenya and the child's home is Kenya. There is no intention that the couple intend to relocate in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/632/eng@2026-01-30 4

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the near future... It is therefore my view that the moratorium does not apply in this case and that it is in the best interest of the child to be adopted by the applicants." 28. The principles emanating from these decisions are clear: Residence and family unity take precedence over the technicality of a passport. Where a foreign national is married to a Kenyan and has established a permanent residence in Kenya, they should not be treated as a "foreign applicant" in the pejorative sense intended by the exclusionary clauses of Section 186. They are part of a Kenyan family unit. 29. Further persuasive authority can be found in the case of In Re of Baby J (the Child) [2014] KEHC 7254 (KLR). In that matter, the Court dealt with the presumption of citizenship and the rights of a child found in Kenya. The Court emphasized that the primary consideration is the child's best interest, and rigid adherence to procedural technicalities that would leave a child parentless is contrary to the spirit of the Constitution. 30. The mischief the law seeks to suppress is the trafficking of children under the guise of adoption by strangers who have no connection to Kenya. That mischief is absent in the present case where the Applicants have lived in Kenya for 8 years, work here, and are raising a Kenyan biological child here. The 2nd Applicant produced a copy of her passport, which contains a Certificate of Permanent Residence endorsed thereon. The same was issued on 24 September 2024. 31. Even if the statute were ambiguous, which I find it is not when read purposively, Article 53(2) of The Constitution is the ultimate yardstick. It mandates that "A child’s best interests are of paramount importance in every matter concerning the child." 32. Article 27 guarantees freedom from discrimination. To interpret Section 186(6)(f) as barring the 1st Applicant, a Kenyan, from adopting simply because his wife is British would be to discriminate against him based on his choice of spouse. It would force him to choose between his marriage and his desire to provide a home for a vulnerable child. 33. Article 45 recognizes the family as the natural and fundamental unit of society. This Court has a duty to protect the integrity of the Applicants' family. The 2nd Applicant has been the foster mother to the child since April 2025. She is the psychological parent. To deny the adoption order would be to fracture the legal recognition of this family unit, leaving the child in a precarious legal position where her de facto mother has no de jure rights. 34. The DCS's reliance on Section 186(6)(f) ignores the proviso in Section 186(7), though not explicitly cited by them, it exists in jurisprudence, and the inherent power of the High Court to act as the upper guardian of all children. The Court must look at the substance, not the form. The substance here is that this is a local family seeking to adopt a local child. 35. Accordingly, I find that the 2nd Applicant’s foreign nationality does not disqualify her from adopting jointly with her Kenyan husband. The joint application is valid, and the restrictions of Section 186(6) (f) do not apply to a foreign spouse of a Kenyan citizen who is ordinarily resident in Kenya. The objection by the DCS is overruled. 36. Section 188 of the Children Act generally requires the consent of the parents or guardians of the child before an adoption order can be made. However, Section 189 grants this Court the discretion to dispense with such consent in specific circumstances, including where the parent or guardian has abandoned, neglected, or persistently ill-treated the child, or cannot be found. 37. The evidence on record is incontrovertible. The child was found abandoned in a pit at one day old. The matter was reported to the Police. The Police and the Adoption Society have made diligent efforts to trace the parents, including through the Kasarani Police Station, but no one has come forward. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/632/eng@2026-01-30 5

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Consequently, I exercise my discretion to dispense with the consent of the biological parents of the child. 38. Having cleared the legal hurdles, the Court must determine if this specific adoption is in the best interests of the child. 39. I have reviewed the Guardian ad Litem’s Report, which is glowing in its assessment. Ms. Sakina Asman observed a strong emotional bonding between the child and the Applicants. The child trusts them and refers to them as parents. Crucially, the child has also bonded with the Applicants' biological daughter, who refers to the minor as her sister and best friend. Separating them now would be psychologically damaging. 40. The DCS Report, despite its legal reservation, confirms that the Applicants are financially stable, physically healthy, and morally suitable. They have provided a safe home at Kenton College. They have education policies and medical cover in place. 41. The proposed legal Guardian, Christine Odhiambo, has sworn an Affidavit confirming her willingness to step in. She is a 44-year-old Advocate, which gives the Court immense comfort regarding the future legal protection of the child should the Applicants be incapacitated. 42. The Applicants have demonstrated their commitment by fostering the child for months, integrating her into their lives, and pursuing this legal process diligently. They offer the child a permanent, loving family, a name, and a future—things she was denied when she was abandoned in a pit at birth. 43. There is no doubt in my mind that granting this adoption order is in the best interests of the child. 44. The Applicants have successfully navigated the adoption process. They have opened their home and hearts to a vulnerable child. The legal objection raised regarding the 2nd Applicant's nationality, while technically grounded in the text of the Act, dissolves when subjected to constitutional scrutiny and the persuasive precedents of this Court regarding mixed-nationality couples resident in Kenya. 45. This Court, guided by the principle of the best interests of the child, finds that the Applicants are fit and proper persons to adopt the child. 46. Accordingly, I allow the Summons and make the following orders: i. The Applicants, R.W.O and A.L.B-O, are hereby authorised to adopt the child currently identified as Baby PB, who will henceforth be named J.N.B.O; ii. The child is declared to be a citizen of Kenya, born on 21 April 2024 at TRM Drive, Nairobi County and is entitled to all the rights and privileges under The Constitution of Kenya and all other laws; iii. CEAO is appointed as the legal Guardian of the child; iv. The Guardian ad Litem is hereby discharged; v. The Registrar-General is directed to make the appropriate entries in the Adopted Children’s Register; DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JANUARY 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/632/eng@2026-01-30 6

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For Applicants: Ms Owiti Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/632/eng@2026-01-30 7

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