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February 20, 2019

Who is not allowed to adopt under Kenyan law?

Adoption is a great concept that offers legal means through which children can find a home away from their parents or birth circumstances.

Long ago, people would just take in a relative's child and bring them up like their own. We all know of that lovely cousin or child you grew up with. We knew him as our brother.

However, times have since changed. Child trafficking and such vices have become a reality and we can no longer live that way.

The Children's Act has come to fill in the gaps that existed in the loose space where children had no safeguards in society.

Realising the great need to have a legislative structure that would help promote, protect and fulfill the dreams and the aspirations to have a place they can call home, the Act came up with guidelines that regulate adoptions in Kenya.

The Act has placed and donated the jurisdiction and power to deal with adoptions exclusively in the hands of the judges of the High Court. The process had to go through a very rigorous test before the adoption orders can be granted. Many players are involved in all adoption cases — children officers, adoption societies, guardians, parents of the child, the adoptive parents, registration officers and sometimes, the police.

You have to satisfy the judge that the child is available and eligible for adoption.

From a general entry, every adult can adopt. Section 258 of the  Children's Act has however provided for a list of people who cannot adopt children.

We must remember that the child is always at the centre of all matters, including adoptions.

Article 53 of the constitution, as read alongside Section 4 of the Act, provide that the best interest of the child principle carries the day whenever we are dealing with children.

Section 258 (2) of the Act provides that an adoption order shall not be made in favour of the following people unless the court is satisfied that there are special circumstances that justify the making of an adoption order:

(a) a sole male applicant in respect of a female child;­

(b) a sole female applicant in respect of a male child;­

(c) an applicant or joint applicants who has or both have attained the age of 65 years;­

(d) a sole foreign female applicant.


Subsection 3 goes ahead to make more restrictions. It provides that an adoption order shall not be made if the applicant or, in the case of joint applicants, both or any of them:

(a) is not of sound mind within the meaning of the Mental Health Act;­

(b) has been charged and convicted by a court of competent jurisdiction for or any of the offences set out in the Third Schedule to this Act or similar offences;­

(c) is a homosexual;­

(d) in the case of joint applicants, if they are, not married to each other;­

(e) is a sole foreign male applicant.

One would ask, why is a sole foreign female applicant not in this category?

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