REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT RUIRU

CHILDREN’S CASE NO. MCCHCC /E074 OF 2025

ANNE ROSE WANJIRU …………………………………….…………………………………………….. PLAINTIFF

Suing as mother and next friend of
Alex Munguyu & Shawn Waweru (minors)
VERSUS
PAUL MAINA MUNGUYU ……………..........................................................................…………. DEFENDANT

PLAINTIFF’S SUBMISSIONS
(In respect of the Chamber Summons Applications dated 23rd June, 2025 and 11th July, 2025)

May it please your Honour,

1. The Plaintiff/Applicant filed an Application dated 23 rd June, 2025 against the
Defendant seeking the following orders:-
a. An order compelling the Defendant to provide school related expenses and
adequate maintenance of the minors of Kshs. 60,000 payable on the 5 th day of each
succeeding month.
b. An order compelling the Defendant to provide extended parental responsibilities
to Ashley Wanjiku(20yrs) until she completes her education
c. Costs be borne by the defendant/respondent
2. The Defendant also filed an application dated 11th July, 2025 against the Plaintiff
seeking temporary legal and actual/physical custody, care and control of the minors
and costs be borne by the plaintiff.
3. We crave the Court’s leave to rely entirely on the Plaintiff’s Supporting Affidavit and
Replying affidavit herein.
4. The issues for determination by this Honourable court which we are going to submit
on are, temporary custody and maintenance of the minors and extended parental
responsibilities to Ashley Wanjiku.
Temporary Maintenance
5. The law relating to maintenance of a child is contained in the Constitution of Kenya,
2010 and the Children’s Act. Article 53(1)(e) of the Constitution provides every
child has the right to parental care and protection, which includes equal responsibility
 of the mother and father to provide for the child, whether they are married to each
other or not.
6. Section 111 of the Children’s Act emphasizes the issue of joint responsibility
between parents in that it is the joint duty and responsibility of both parents to
maintain the child whether or not the parents are married to each other.
7. The above provisions impose equal responsibility on the father and mother of a child
to provide for the child. Parental responsibility therefore rests equally on both
parents and in that regard the plaintiff submits that the needs of the minors herein be
met equally whereby the defendant caters for the children’s’ school related expenses
and adequate maintenance of the minors of Kshs. 60,000 payable on the 5th day of
each succeeding month.
8. The defendant has confirmed his capability to provide for the minors as demonstrated
in his affidavit of means. The defendant has shown capability to cater for three alleged
step children whose mother he is living with. He has not demonstrated that he has
adopted the said children therefore responsible for them. We submit that the
defendant is a person of means and he is well able to provide school related expenses
for the minors and monthly maintenance of Kshs. 60,000 and therefore we urge this
Honourable Court to allow the plaintiff’s application as prayed.

Extended parental responsibility towards Ashley Wanjiku (20yrs)

9. We submit that the orders sought for extended parental responsibility towards Ashley
Wanjiku (20yrs) have not been opposed by the defendant.
10. The defendant has demonstrated in his replying affidavit his willingness to provide
for Ashley and particularly under paragraph 19 of his replying affidavit sworn on 11 th
July, 2025 he has stated his willingness to cater for her higher education.
11. We urge this Honourable court to allow the plaintiff’s application with costs.

Whether the Defendant has satisfied conditions for grant of temporary custody.
12. The prayers sought in the Application are interim in nature and we submit that the
court must be wary not to delve into the merit of the case at the interim stage as was
held in the case of ANT v AMA [2015] eKLR.
13. We submit that the general principles regarding temporary custody of minors
pending litigation were well discussed by the Court of Appeal in the case of D.O.O. –
VS- J.A.O. (Civil Appeal 25 of 2015 (2015) KECA KLR (23 July, 2015) (DK Musinga &
AK Murgor JJ.A.) where the learned Judges in the relevant parts held as follows:
“Section 4 (2) of the Children Act No. 8 of 2001 reads:-
In all actions concerning children, whether undertaken by public, or private, social
welfare institutions, courts of law, administrative authorities, or legislative
authorities, the best interests of the child shall be a primary consideration”.
14. The Children’s Act 2022 replicates the best interest rule in section 8 consistent with
Article 53 of the Constitution and it states as follows:
8. Best interests of a child
(1) 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.
(2) 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.
(3) 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

15. What amounts to the best interests of the child is described in section 2 of the
Children’s Act 2022 as ‘…..the principles that prime the child’s right to survival,
 protection, participation and development above other considerations and includes the
rights contemplated under Article 53(1) of the Constitution and section 8 of this Act;’
16. Article 53 (2) of the Constitution states that the welfare of the child is of paramount
consideration in every matter and thus, court should consider which parent will be
able to provide the best shelter, health, education and upbringing.
17. There is no dispute that statute and the principles laid down by case law dictate the
mother being granted custody unless exceptional circumstances exist to warrant a
deviation from the norm.
18. Section 83 (1)(j), of the Children's Act, Cap 141 laws of Kenya similarly states that
in determining whether or not a custody order should be made in favour of the
applicant, the court shall have regard to the best interest of the child.
19. Section 11 (2) of the Children Act provides that every child has the right to live with
his or her parents except in exceptional circumstances. The primacy of parental rights
is well settled by judicial precedent including in the case of LAC & another v
MJC (Civil Appeal E119 of 2021) [2022] KECA 68 (KLR), where the Court of Appeal
asserted that parental rights are unassailable except in instances where it is
demonstrated that the parent is unfit.
20. We submit that the defendant is unfit to have temporary custody of the minors Shawn
Waweru (10yrs) and Alex Munguyu (17yrs) as he is a violent and immoral person and
he also suffers from alcohol addiction. He has demonstrated in his pleadings that he is
not aware where their last born Shawn Waweru goes to school nor his school needs.
21. The defendant who suffers from alcohol addiction has previously been admitted at
Chiromo rehabilitation Centre for treatment on several occasions. The defendant has
on several occasions exhibited hostility, self-centeredness, false accusations against
the plaintiff as a result of his alcoholism. In April, 2022 the Defendant violently
assaulted the plaintiff in the presence of their three children and then chased the
plaintiff and the children from their matrimonial home with a machete. The incident
was reported at Ruai Police Station vide OB/NO. 30 and the plaintiff had a P3 Form
filled and she sought treatment at Mama Lucy Kibaki Hospital for injuries sustained as
shown by her annexures marked ARW1a,b and c.
22. We submit that the violence meted upon the plaintiff by the defendant has greatly
 traumatized the minors and the plaintiff has had to arrange counseling for them as
shown by the annexures marked ARW5a and b and ARW6a.
23. Further, in May of 2024 it was the defendant intension to render the minors homeless
when purported to sell their home without the knowledge nor consent of the plaintiff
and this necessitated the plaintiff to register a caution. This is illustrated in the
plaintiff’s annexures marked ARW2a, 3a and b.
24. The Defendant has demonstrated his immoral character. He has confirmed in his
replying affidavit that he has remarried despite his marriage to the plaintiff still
subsisting. The defendant is cohabiting with another woman together with her three
children and it is unfortunate that he wants the minors herein to join and live in the
same household with people who are strangers to them.
25. The defendant claims that the minors are living with the Plaintiff in deplorable
conditions without proper care and accommodation, that the plaintiff is of immoral
lifestyle and that she has neglected the minors. The plaintiff has opposed these claims
as they are untrue and the defendant has not provided material on record to prove
these claims. We submit that these claims are meant to hoodwink this Honourable
Court to issue the orders in his favour.
26. We submit that the minors currently in the custody of the plaintiff are neither being
neglected, nor in danger requiring them to be removed from her custody. The
defendant has therefore not satisfied conditions for grant of temporary legal and
actual custody.
27. We submit that it will not be in the best interests of the minors to disrupt the
environment the minors are currently calling home and urge this Honourable Court to
dismiss the Defendant’s application with costs.

This Your Honor are our humble submissions.

DATED at RUIRU this day of 2025

__________________________________
N.K KIENJEKU & CO.
ADVOCATES FOR PLAINTIFF
DRAWN AND FILED BY:
N.K KIENJEKU & COMPANY ADVOCATES
ROWINI HOUSE, 1ST FLOOR,
P.O BOX 52532-00100
RUIRU
CELL: 0703941692
Email: [email protected]

TO BE SERVED UPON
KIMANDU & NDEGWA COMPANY
ADVOCATES,
EAGLE HOUSE 5TH FLOOR,
KIMATHI STREET,
P.O. BOX 908-00300,
NAIROBI.