High Court 1996 of 2026

5. The power of this Court to make an adoption order is provided in Section 183(1) of the Act as follows: 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. 6. Section 183(3) stipulates the different kinds of adoptions as follows: In this Act, adoption means local, kinship and foreign adoption. 7. A plain reading of Section 183(1) and (3) clearly shows that this Court has the power to make an adoption order in relation to local, kinship and foreign adoptions. 8. In the present case, the female Applicant is an Italian National. The Court must determine whether she should be allowed to adopt the child, given that she is a foreign national? 9. Section 183(4)(c) defines a foreign adoption as follows: “ 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. 10. A foreign adoption is one where the applicant or applicants are Kenyan nationals with dual citizenship or are foreign nationals whether or not resident in Kenya. An adoption is also foreign where the applicant or applicants are not Kenyan nationals but are biologically related to the child or were once Kenyan nationals but lost their nationality upon acquiring citizenship of another country. 11. While the male Applicant is a Kenyan citizen Britain, the female Applicant is an Italian citizen. Neither is a relative of the child. Applying the definition in Section 183(4)(c) of the Act, to the present circumstances therefore, it is clear that this is a foreign adoption. 12. As indicated herein, under Section 183(1) of the Act, this Court has powers to make an adoption order in relation to foreign adoptions. In an apparent contradiction to this position, Section 186(6) provides: 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) 13. is a foreign applicant except where the applicant is a biological relative of the child. On the one hand, Section 183(1) of the Act empowers the Court to, 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. Under Section 183(3), among the adoption orders that may be made is a foreign adoption relating to an applicant or applicants who are foreign nationals whether or not resident in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1996/eng@2026-02-20 2

page 2 of 4

Kenya. On the other hand, however, under Section 186(6), an adoption order may not be made to a foreign applicant who is not a biological relative of the child. 14. What orders should then be made by the Court in this matter, in light of this contradiction? Article 53(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The best interests of the child must of necessity include the rights provided in Article 53(1). These are inter alia the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child. 15. Section 8 of the Act underpins this constitutional imperative of safeguarding the best interests of the child by providing that: 1. 2. 3. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies— a. the best interests of the child shall be the primary consideration; b. the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to— a. safeguard and promote the rights and welfare of the child; b. conserve and promote the welfare of the child; and c. secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest. In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity. 16. In making a determination in this matter, this Court shall be guided by the overriding constitutional and statutory principle of safeguarding the bests interests of the child and the contradiction must be resolved accordingly. 17. It is noted that the child has been in the continuous care and control of the female Applicant for a period of 6½ years since the guardianship order was granted. Upon their marriage on 23.3.23, both Applicants have been jointly meeting the needs of the child. They have been in continuous care and control of the child since, which is more than the statutory 3 months’ period required under Section 185(2)(a) of the Act. The Applicants now seek to adopt the child so that they can provide her with parental care and protection as the legal parents. 18. The Applicants are not below the age of 25 years, nor are they older than 65 years. Both are more than 21 years older than the child. Section 186(2) of the Act has thus been complied with. 19. The Applicants confirmed that they have been made aware of the consequences of an adoption order as well as the rights of an adopted child. They shall assume all parental rights and duties of the biological parents in respect of the child. I am satisfied that the Applicants fully understand that the adoption order is final and binding during the lifetime of the child and cannot under any circumstances give up the child. The child shall also have the right to inherit the Applicants’ property. In addition, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1996/eng@2026-02-20 3

page 3 of 4

child has equal right to inherit the male Applicant’s property with his biological child MI. From the aforesaid reports the Court is further satisfied that the Applicants have the financial resources, social and emotional capability to bring up the child. 20. The Applicants propose that upon the making of the adoption order, the child be known as MZB. 21. The Applicants have nominated LKK to be the legal guardian of the child, in the event of the Applicants dying or becoming incapacitated before the child is of full age. Her consent dated 6.3.25 is on record. 22. After a careful assessment of the reports filed herein this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicants. 23. Having taken into account the foregoing factors, this Court makes the following Orders as prayed in the Originating Summons: a. The Applicants BT holder of Italian passport number YC5xxxx90 and her husband MMK holder of national identity card number 26xxxx59 are hereby allowed to adopt the child who shall henceforth be known as MZB. b. I direct the Registrar General to enter this order in the Adoption Register. c. LKK holder of national identity card number 29xxxx90 is hereby appointed the legal guardian of the child, in the event the Applicants die or become incapacitated before the child is of full age. d. The appointment of BKK, the guardian ad litem now stands expired. DATED, SIGNED AND DELIVERED IN MALINDI THIS 20TH DAY OF FEBRUARY 2026 M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1996/eng@2026-02-20 4

page 4 of 4