High Court 4898 of 2026

5. The child herein is 13 years old, having been born on 27.6.13. There is on record the written consent of the child dated 16.4.26, in line with Section 186(8)(c) of the Act which provides: 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— (f) in the case of a child who has attained the age of ten years, the child himself or herself. 6. The law recognises 3 kinds of adoptions, namely kinship, local and foreign. Section 183(3) of the Act provides that In this Act, adoption means local, kinship and foreign adoption. 7. Section 2 of the Act defines "kinship adoption" as the adoption of a child by a person who is a relative of the child. The adoption herein is a kinship adoption as the female Applicant is a sister to the mother of the child. 8. 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. 9. 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. 10. The female Applicant is Kenyan, while the male Applicant is a foreign national. Applying the definition in Section 183 of the Act, to the present circumstances therefore, it is clear that this is also a foreign adoption. 11. As indicated herein, Section 183 allows 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) 12. is a foreign applicant except where the applicant is a biological relative of the child. Section 191 provides that the Court may make an adoption order in respect of a child on the joint application of two spouses who are not citizens or residents of Kenya, subject to certain conditions. The provision does not however apply to circumstances such as in the present case where one of the applicants is Kenyan and the other is a foreigner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4898/eng@2026-04-17 2

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13. What orders should then be made by the Court in light of these provisions? 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) which inter alia are the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour, parental care and protection, which includes equal responsibility of the mother and father to provide for the child. 14. 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. 15. 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. 16. The reports on record indicate that female Applicant has lived with the child since she was born and has been taking care of all her needs. Both Applicants have since 2015 jointly taken care of the child’s needs. The child has during this period enjoyed parental care and protection, and her welfare has been safeguarded. When given an opportunity to express her opinion on the adoption, the child informed the Court that she was very happy to be adopted by the Applicants so that she can be part of the family, together with her 2 cousins who were adopted by the Applicants. The Applicants have demonstrated that they have the psychological and emotional capacity as well as the material resources to raise 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 female Applicant from birth and both Applicants from 2015, this Court has formed the opinion that it would be in the best interest of the child to be adopted by the Applicants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4898/eng@2026-04-17 3

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17. Having taken into account the foregoing factors, this Court has formed the opinion that it would be in the best interests of the child to be adopted by the Applicants. The Court makes the following Orders as prayed in the Originating Summons: a. The Applicants RIY holder of national identity card number 23xxx and her husband JMG holder of United States of America passport 56xxx are hereby allowed to adopt BIK. b. I direct the Registrar General to enter this order in the Adoption Register. c. The appointment of SIY, the guardian ad litem now stands expired. DATED, SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF APRIL 2026 M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4898/eng@2026-04-17 4

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