A Wajir court has granted guardianship of a nine-year-old abandoned girl to both her biological aunt and her foster mother, but ruled that actual custody remain with the foster parent.
Magistrate Francis Baraka awarded actual custody of Baby Z—physical care and control—solely to the first defendant, HHA.
The plaintiff, who claims to be the child's biological aunt, was, however, granted joint legal guardianship, including visitation rights.
The court heard that Baby Z was found abandoned outside a home in Wajir on April 3, 2017, when she was eight months old.
She was rescued by a chief and handed over to police before being placed with HHA, who had expressed willingness to foster children in need.
Police officer DW 7 confirmed the child was "malnourished and generally not well health-wise”.
Due to her condition, the child was taken to Wajir Referral Hospital for assessment and treatment.
With no children's rescue centre in Wajir, the children's office identified HHA as a foster mother and assessed her suitability.
HHA was taken through family alternative care to prepare her for the task ahead.
From April 4, 2017, the child remained in her care, receiving food, shelter and all basic needs.
The children's office consistently supervised the child to assess her wellbeing and development.
For seven years, from 2017 until the biological family came forward in 2024, no one claimed the child and no police report of a missing child was ever made.
HHA formally applied to foster the child and the court set a date for hearing in May 2024.
But the plaintiff challenged the application, telling the court she is related to the child. The court accommodated her in the proceedings.
The plaintiff had sought an order vesting the legal custody, actual care and control of the minor as well as legal guardianship.
She relied on DNA results confirming that Baby Z is a biological sibling to children in her care.
The petitioner stated that the child's biological mother, now deceased, suffered from mental illness, leading to the loss of the baby and the separation from her biological family.
However, the court noted that the plaintiff had filed a birth certificate processed in June 2024—more than seven years after the child was rescued—claiming the minor was born on November 25, 2017.
Conversely, HHA produced a birth certificate registered on July 11, 2017, indicating Baby Z was born on October 5, 2016.
Regarding the birth certificate, she explained that it was needed for Baby Z to join school and to be registered under NHIF medical scheme.
HHA testified that the birth certificate was registered on June 28, 2017 and issued on July 11, the same year.
She also produced a protection and care document dated May 29, 2017, prepared by the children's office concerning Baby Z.
HHA also provided school documents confirming Baby Z was enrolled in school and was currently in Grade 3, along with the minor's report forms.
The defendant testified that she has fostered a total of five children—including Baby Z—and submitted that removing the child from her care would cause the minor psychological trauma.
She confirmed she had no prior knowledge of the plaintiff and only came to know her when the case begad, expressing concern that the plaintiff and the family “never asked for the minor when she was young. That they are only showing up now."
Baby Z, who was examined twice by the court, identified the defendant and her husband as her parents.
She confirmed she has never been abused, neglected or harmed in her current home, saying "there is nothing in her current home that she could ask court to change".
When asked about the case, she said she knew people were claiming she was their child, but declared that even if she was, “she will not go to live with them" and that "even if court orders, she will not go to stay with the plaintiff".
She requested that court order the people asking for her "to leave her alone" and that she wishes to remain with HHA and her husband.
The judge ruled that while biological ties exist, the child’s best interests and welfare dictate maintaining her established environment with her foster mother.
The court gave significant weight to the child's wishes, with the magistrate noting she "was emphatic" she would disobey any order to leave.
The court also found that the plaintiff had failed to plead and particularise fraud, misrepresentation, breach of trust, wilful default or undue influence deceptive scheme to deprive the biological family of the child.
Regarding the claim of the biological mother's mental state, the court found nothing was filed to support that allegation.
Magistrate Baraka observed that returning the child after seven years of abandonment would cause self-inflicted prejudice to the minor.
Consequently, the court granted joint legal custody and guardianship to both parties, but awarded sole physical custody and primary welfare decision-making authority exclusively to HHA.
The Attorney General, the third defendant, supported granting guardianship to HHA, while the court rejected the social enquiry report recommending reunification with the plaintiff, noting the plaintiff had not demonstrated capacity to fulfil parental responsibilities.
