High Court 4787 of 2026

4. B has agreed to the adoption of the child by the Applicant. She stated that she did not have the capacity and ability to take care of the child. She signed a consent dated 25.8.25 voluntarily consenting to the adoption of the child by the Applicant who has taken care of her since birth. She deponed that her consent is without any force coercion or undue influence and is in the best interests of the child. 5. In compliance with Section 184 of the Children Act, Change Trust case committee declared the child free for adoption on 28.8.25 and issued certificate serial number 0xxxx5. 6. By an order of this Court of 30.10.25, Monica Wahito Gathu was appointed guardian ad litem for the child pending the hearing and determination of the adoption application, in accordance with Section 188 of the Act. 7. Reports in respect of the assessment of the Applicant have been filed as required. The report of Change Trust which arranged the adoption of the child is on record. On her part, Monica Wahito Gathu filed her report dated 11.11.25. All these reports are positive and recommend the proposed adoption. 8. Winifred Kambua Kaluku, Kilifi County Coordinator Children Services filed her reports dated 29.5.25 19.11.25 and 25.11.25. She noted that the child lives with the Applicant and is familiar with her. She is also well kept. She further noted that B’s consent to the adoption was informed, voluntary, and guided by the perceived best interests of the child. 9. Winifred Kambua however raised a number of concerns regarding the instant adoption process. First, that Change Trust which declared the child free for adoption was not amongst the licensed adoption societies. Second, that temporary guardianship was granted by the subcounty children’s officer, Kilifi South and not by a court. Third, that the Applicant has attained the age of 65 years. Lastly, that the legal guardian and guardian ad litem Monica Wahito Gaitho are one and the same person. 10. Section 185(2)(b) of the Act prohibits the Court from entertaining an application for an adoption order in respect of a child, unless the application for such adoption order is supported by a report made by a duly registered adoption society recommending that an adoption order be made. Section 208(1) of the Act provides that no adoption agency, institution, individual or public officer may make or facilitate the making of any arrangements for the adoption of a child under this Act unless the agency or institution is duly registered as an adoption society in accordance with this Act. 11. Under Section 42(v) of the Act, the National Council for Children Services (National Council) is mandated to accredit and license duly registered adoption and child protection agencies in order to facilitate domestic and inter-country adoptions. 12. The reservation by Winifred Kambua is no doubt triggered by the letter from the National Council dated 8.7.25 and addressed to the Secretary, Children Services listing the licensed adoption societies. The Court notes that Change Trust which filed a report recommending the adoption is not in the said list. 13. When this issue was raised, Change Trust supplied the Court with a letter dated 23.7.25 in which the Chief Executive Officer of the National Council for Children’s Services extended the period to meet all requirements for renewal of its registration to 31.8.25. The letter stated that the extension was granted to enable Change Trust comply with Section 208(1) and to act in the best interest of the children being processed through it. 14. It is clear from the reports freeing the child for adoption and the social inquiry report relating to the Applicant both dated 28.8.25, that the child herein is one of those being processed and the extension given by the National Council applied to the arrangements for the adoption of the child. In light of the foregoing, I do find that the declaration of the child free for adoption by Change Trust is valid. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4787/eng@2026-04-10 2

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15. I now turn to the age of the Applicant. Section 186(2)(a) of the Act provides: 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 sixty-five years; 16. The law prohibits the making of an adoption order where the Applicant is above the age of 65 years. The Applicant has exhibited her national identity card which indicates that she was born on 9.11.60. She is thus 65 years old and not above the age of 65 years. Accordingly, granting the adoption order herein will not violate the provisions of Section 186(2) of the Act. 17. As regards the concern that temporary guardianship of the child was granted to the Applicant by the Kilifi South subcounty children’s officer and not by a court is in my view inconsequential with regard to the instant adoption application. A guardianship order is not a prerequisite for the grant of an adoption order. 18. Winifred Kambua has taken issue with the fact that the guardian ad litem and the proposed legal guardian are one and the same person. Section 195 of the Act confers upon the Court, the power to appoint a guardian for a child to be adopted as follows: "At the time of making an adoption order in a domestic or inter-country adoption, the Court may, either of its own motion or on application by the adopter or joint adopters, appoint a guardian of the child in the event that the adopter or, in the case of a joint application by spouses, as the case may be, the adopter or joint adopters die or become incapacitated before the child attains the age of eighteen years." 19. It is not clear to the Court what the actual concern is, given that Section 188 of the Act provides that the appointment of a guardian ad litem shall expire upon the making of a final order by the Court. Further, the Court, having regard to the interests of the child, may extend the period of the appointment. Evidently, the law does not prohibit the extension of the appointment of the guardian ad litem beyond the making of an adoption order. In any event, the power to appoint a legal guardian is discretionary and not couched in mandatory terms. The concern raised by Winifred Kambua in this regard is thus unfounded. 20. 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 herein. 21. The reports on record indicate that the Applicant has lived together with the child since her birth in 2017. The Court observed them and they appeared to have bonded well. The child has during this period enjoyed parental care and protection from the Applicant who has taken care of and safeguarded her welfare and needs, including education and upkeep. The Applicant has demonstrated that she has the psychological and emotional capacity as well as the material resources to continue raising the child in a loving home environment. After a careful assessment of the reports filed herein and noting that the child has been in the custody and care of the Applicant for over 8 years, way beyond the statutory 3 months’ period required under Section 185(2)(a) of the Act, this Court has formed the opinion that it would be in the best interests of the child to be adopted by the Applicant. 22. The Applicant confirmed that she has been made aware of the consequences of an adoption order as well as the rights of an adopted child. She shall assume all parental rights and duties of a biological parent in respect of the child. I am satisfied that the Applicant fully understands that the adoption order is final and binding during the lifetime of the child and that she cannot under any circumstances give up the child. Further, that the child shall also have the right to inherit the Applicant’s property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4787/eng@2026-04-10 3

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23. The Applicant proposes that upon the making of the adoption order, the child be known as Layla Cassandra Enz Bwire. 24. Having taken into account the foregoing factors, this Court has formed the opinion that it would be in the best interests of the child that she be adopted by the Applicant and makes the following orders: a. The Applicant ME holder of national identity card number 7xxxx00 is hereby allowed to adopt LCB who shall henceforth be known as Layla Cassandra Enz Bwire. b. I direct the Registrar General to enter this order in the Adoption Register. c. The appointment of Monica Wahito Gathu, the guardian ad litem now stands expired. DATED, SIGNED AND DELIVERED AT MALINDI THIS 10TH DAY OF APRIL 2026 ......................... M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4787/eng@2026-04-10 4

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