What Is the Adoption Process in Kenya and What Law Governs It?
Adoption is the legal process by which a court vests parental rights and responsibilities over a child in prospective adoptive parents, a person, or a couple, permanently transferring all rights and responsibilities from the biological parents to the adoptive parents. After adoption, the child gains full inheritance rights from the adoptive parents, and the child’s legal identity changes upon issuance of an adoption order.
Adoption is irrevocable except in extremely limited circumstances provided by law.
In Kenya, this process is rigorously regulated to prioritize the Best Interests of the Child strictly.
This guide answers critical questions regarding the adoption process, grounded in the Children Act 2022, the Constitution of Kenya 2010, and relevant judicial precedents.
What is the governing law for adoption in Kenya?
A robust legal framework governs the adoption process in Kenya:
- The Constitution of Kenya, 2010: Article 53(2) is the cornerstone, mandating that “A child’s best interests are of paramount importance in every matter concerning the child.”
- The Children Act, 2022: This is the primary statute replacing the 2001 Act. Sections 183–204 specifically govern adoption, introducing stricter vetting to prevent child trafficking.
- The Children (Adoption Proceedings) Rules: These provide the procedural roadmap for filing court applications.
- International Conventions: Kenya is a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, which guides foreign and inter-country adoptions.
What are the prerequisites for adoption in Kenya?
Under section 184 of the Children Act, 2022, and relevant regulations, the main prerequisites before an adoption order can be granted include:
- The child must be declared “free for adoption” in writing by the National Council for Children’s Services (NCCS).
- The child must have attained the age of six (6) weeks.
- A registered adoption society must have assessed the child and the prospective adopter(s) and issued a report recommending adoption.
- The child must usually have been in the continuous care and possession of the applicant(s) for a period of at least 3 months.
- Required consents (biological parents, guardians, spouse of applicant, child if of sufficient age and understanding) must be obtained or validly dispensed with by the court.
- Social enquiry reports by the Children’s Department, adoption society, and guardian ad litem must be favourable and satisfy the court that the adoption serves the child’s best interests.
- An applicant shall not preselect a prospective adoptive child except in the case of kinship adoption or where the applicant is a foster parent seeking to adopt a fostered child under the applicant’s care.
What are the types of adoption in Kenya?
Under the Children Act 2022, adoption is categorized into four main types:
- Local Adoption: The child is a resident in Kenya, and the adoptive parent(s) are Kenyan citizens resident in Kenya.
- Kinship Adoption: The applicant is a relative of the child (e.g., grandparent, sibling, uncle, or aunt). This is often prioritized to keep the child within the family unit.
- Foreign Adoption: The applicant is a foreign national or a Kenyan with dual citizenship who is not a resident of Kenya.
- Inter-Country Adoption: Adoption of a Kenyan child by spouses who are not citizens or residents of Kenya. This is highly regulated and often requires clearance from the Moratorium Committee.
Who can apply for adoption in Kenya (Eligibility)?
Section 186 of the Children Act 2022 outlines the strict prerequisites for applicants, and they must:
- Be 25 to 65 years old.
- Be at least 21 years older than the child.
- Be of sound mind, financially stable, and of good moral standing.
- Not have been convicted of child-related offences.
- For joint applicants, they must be spouses.
- Sole male applicants may not adopt, except where the applicant is a biological relative of the child.
Which children are eligible for adoption in Kenya?
A child is eligible for adoption if they:
- Are at least 6 weeks old and under 18 years.
- Have been declared free for adoption by a registered Adoption Society.
- Are residents in Kenya (whether a Kenyan citizen or not).
- Fall into one of these categories:
- Orphans (no surviving parents).
- Abandoned (parents cannot be traced after due diligence).
- Voluntarily offered for adoption by biological parents (consenting).
What is the Adoption Order?
An Adoption Order is a final judgment by the High Court that extinguishes the parental rights of the biological parents/guardians and vests them fully in the adoptive parents. Once granted, the child is treated in law as if they were born to the adopters.
It is permanent and irrevocable, except through a court-ordered review in exceptional circumstances.
What Is the Process of Filing for Adoption in Kenya?
The adoption process typically follows these steps:
Step 1: Engagement with a Registered Adoption Society
The society assesses eligibility and declares the child free for adoption. Prospective parents undergo vetting and counselling.
Step 2: Placement of the Child
The child is placed with the prospective parents for a bonding period of at least 3 months under the supervision of the social workers.
Step 3: Filing of the Adoption Cause in the High Court
A formal Originating Summons is filed in the Family Division of the High Court, accompanied by the supporting affidavits and the relevant consents.
Step 4: Appointment of Guardian ad Litem
The Court appoints an independent guardian ad litem to represent the child during the process.
Step 5: Social Inquiry Reports
Reports are filed by:
- Adoption Society
- Guardian ad litem
- Director of Children’s Services
Step 6: Court Hearing
The judge examines compliance with the Children Act and whether the adoption is in the child’s best interests.
Step 7: Issuance of Adoption Order
If the Court is satisfied that adoption is in the child’s best interests, it issues an adoption order with ancillary directions (such as naming, birth registration, guardianship).
Which documents are needed when applying for an adoption order?
Exact documentation can vary by court station, type of adoption, and regulations, but commonly includes:
- Identification documents of applicants (ID cards/passports), and a marriage certificate for spouses.
- Child’s birth certificate or letter of birth, or documents supporting date and place of birth where no certificate exists.
- Declaration by NCCS that the child is free for adoption.
- Adoption society report and recommendation.
- Social enquiry report from the Children’s Department.
- Affidavits by applicants, statement in support of the adoption, and list of documents.
- Consents: biological parent(s), guardians, spouse of applicant, child if of sufficient age and understanding, and proposed legal guardian(s) for the child.
- Guardian ad litem’s consent to act and subsequent report.
For intercountry adoptions, additional documents are typically required, such as home-country approvals, police clearances, medical reports, financial statements, and central authority clearances.
Which consents are required in the adoption process?
Sections 186 and 187 of the Children Act, 2022, and the Regulations outline the necessary consents. Typically required consents include:
- Consent of the child’s biological parent(s) or legal guardian(s), where they can be found and are capable of consenting.
- Consent of the child, if the child is of sufficient age and understanding (often assessed from about 10 years and above in practice).
- Consent of the applicant’s spouse in joint or individual applications by a married person.
- Consent of the proposed testamentary/backup legal guardian for the child, agreeing to act if the adopter dies or becomes incapacitated.
When can the court dispense with consent?
Section 187 of the Children Act, 2022, empowers the court to dispense with consent in specified circumstances, for example:
- Where the parent or guardian has abandoned, neglected, or persistently ill‑treated the child.
- Where the parent or guardian cannot be found or is incapable of giving consent.
- Where the child is freed for adoption, and the court is satisfied it is in the child’s best interests to proceed without consent.
What is the role and purpose of a guardian ad litem in adoption?
Section 188 of the Children Act, 2022 requires the appointment of a guardian ad litem for adoption proceedings.
Key functions include:
- Representing and safeguarding the child’s best interests throughout the court process, independent of the adopters and the biological family.
- Investigating and reporting to the court on the child’s circumstances, the suitability of the adopters, and the effect of the proposed adoption.
- Liaising with the Children’s Department and adoption society, where necessary, and making recommendations.
What interim orders can the court grant pending the conclusion of the adoption process?
Section 189 of the Children Act, 2022, provides for interim orders and related directions.
The court may:
- Make interim custody, care, or placement orders in favour of the applicant(s) pending final determination.
- Impose conditions on the interim placement, including supervision, reporting duties, and restrictions on the removal of the child from the jurisdiction.
- Give consequential directions to ensure the child’s welfare, such as requiring periodic social reports or medical reviews before final orders.
In practice, by the time of filing, the child will often already be with the applicants under administrative placement; the court then regularizes this arrangement through interim or case management orders.
What is a Review of Adoption Order?
Section 190 of the Children Act provides a safety net. A biological parent can apply for a Review of the Adoption Order if:
- The child was lost or abducted.
- The parent had taken all measures to trace the child but failed.
- There was fraud or concealment of facts during the process.
Outcome: The Court may revoke the adoption or grant joint custody, though this is rare and requires a high burden of proof.
The best interests of the child remain the guiding standard when considering whether disturbing an existing adoption order is justifiable.
What is a Review of Adoption Order?
Section 190 of the Children Act provides a safety net. A biological parent can apply for a Review of the Adoption Order if:
- The child was lost or abducted.
- The parent had taken all measures to trace the child but failed.
- There was fraud or concealment of facts during the process.
Outcome: The Court may revoke the adoption or grant joint custody, though this is rare and requires a high burden of proof.
The best interests of the child remain the guiding standard when considering whether disturbing an existing adoption order is justifiable.
What are some of the powers of the court during the adoption process?
Under sections 183 – 190 of the Children Act, 2022, the Constitution, and general civil jurisdiction, the court enjoys wide powers, including:
- Granting, refusing, or postponing an adoption order, and imposing conditions (for example, conditions about the child’s upbringing, cultural tradition, or security/undertakings).
- Dispensing with consents under section 187 and giving directions regarding attempts to trace parents or relatives.
- Appointing and discharging a guardian ad litem and ordering investigations and social enquiry reports.
- Appointing a legal guardian to step in if adopters die or become incapacitated.
- Directing registration of the adoption, altering the child’s name and recording date and place of birth, and granting related consequential orders.
Courts consistently emphasize that all these powers must be exercised in accordance with the constitutional best interests test in Article 53 and the welfare principles of the Children Act.
Where do you appeal if dissatisfied?
Any party aggrieved by the High Court’s decision (e.g., refusal to grant the order) can appeal to the Court of Appeal (Section 198). Further appeals may lie to the Supreme Court as a right in constitutional matters, or if the matter is certified as a matter of general public importance that transcends the parties & interests.
What Are the Legal Effects of Adoption?
Upon issuance of an adoption order:
- Child assumes adoptive parents’ surname.
- Child gains inheritance rights.
- Biological parental rights terminate.
- Child becomes a lawful dependent for immigration and succession.
Is Adoption Confidential in Kenya?
Yes. Adoption proceedings are conducted privately to protect the child’s identity and dignity.
How Njaga & Co. Advocates Assists in Adoption & Family Law Matters
At Njaga & Co. Advocates LLP, we understand that adoption is both a legal process and an emotional journey. Our role is to make it smooth, legally compliant, and empowering for families. Our firm assists in:
- Comprehensive legal guidance under the Children Act, 2022
- Preparation and filing of adoption pleadings
- Representation in the High Court
- Handling consent disputes
- Advisory on local and intercountry adoption
- Appointment and structuring of legal guardianship
- Succession planning for adoptive families
Beyond adoption, we offer expert representation in:
- Divorce & Separation
- Child Custody & Maintenance
- Guardianship
- Succession & Probate
- Matrimonial Property
- Family Trust Structuring
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
