REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATE COURT AT MUTOMO

CHILDREN ‘S CASE NO E003 OF 2023
IN THE MATTER OF “ANK” MINOR
Suing through:
SUSAN MUSENYA MUMO (Suing as the next friend and mother of the minor)
……………….……..…………….……………..………………..……………PLAINTIFF

VERSUS

BRIAN KINUNA CHAPA…….……….………………….………………….........DEFENDANT

DEFENDANT’S DEFENCE AND COUNTERCLAIM

1. Save and except what is herein expressly admitted, the Defendant denies each and
every allegation contained in the Plaint as if each of them were set forth verbatim
hereunder and traversed ad seriatim.

2. The Defendant admits the description of parties save that his address for service is care of
ANASTACIA MBITHE &CO ADVOCATES ,MILLY MULTIPURPOSE
HOUSE,OPPOSITE EQUITY BANK , P.O BOX 1 MUTOMO, TEL 0700853277,
EMAIL anastaciahmbithe@gmail.com, ambithe17@gmail.com

3. The defendant further admits the contents of paragraph 3 of the plaint in as far as the
same is them being biological parents of the minor.

4. The defendant admits the contents of paragraphs 4 of the Plaint to the extent that he was
in a union of marriage with the Plaintiff as a result of which they were blessed with the
minor issue the subjects of this instant suit

5. Save for the fact of having irreconcilable differences, Defendant denies all the other
contents of Paragraph 5 of the Plaint and subsequently subjects the plaintiff into strict
proof thereof.

6. In response to paragraph 6 and 7 of the Plaint, the Defendant denies all the allegations
therein and puts the Plaintiff to strict proof thereof. The Defendant avers he has always
provided for the minor to the best of his ability.

7. In response to paragraphs 8,9,10 and 11 the Defendant avers that he entered into a
Parental Responsibility Agreement with the Plaintiff, but to his utter dismay and shock,
the Plaintiff failed to adhere to the same and has instead, resorted to unorthodox means
of frustrating the Defendant while adamantly asking for untenable amounts of money.
8. In further response to paragraphs 8, 9, 10 and 11 the defendant avers that despite him having
another family to take care of, he still provides for the minor. It is the plaintiff that has
unrealistic expectations of him and a convoluted idea of his earnings.

9. In response to paragraphs 12 and 13 the defendant avers that the Plaintiff is engaged in
gainful employment working as a saloonist and as such, she is in a position to equally
share in the responsibility of providing and maintaining the minor.

10. Paragraphs 14 and 15 of the Plaint are hereby admitted.

11. That for the above reasons, the Defendant states that the plaintiff’s suit as filed is
frivolous, malicious and driven by selfish interests.
REASONS WHEREFORE the defendant prays that the Plaintiff's suit against him be
dismissed with costs.

COUNTERCLAIM
12. The Defendant reiterates each and every averment of fact and law contained in
paragraphs 1 to 11 of the defence hereinabove as if the same were set out herein seriatim.

13. At all material times, the Defendant avers that he has always provided for the minor to
the best of his ability and that he has always adhered to the parental responsibility
agreement dated 3 r d October,2023 and remitted Kenya Shillings Four
Thousand (Kshs. 4,000) to the plaintiff monthly.

14. The defendant avers that the Plaintiff has tried to make life unbearable for
him by denying him access to the Minor, using abusive language and meting out
unrealistic expectations upon him.

15. The defendant avers that he is only paid a paltry sum of Kenya Shillings Twenty Eight
Thousand Kshs. 28,000.00.

16. The Defendant avers that it is out of the sum of Kenya Shillings (Ksh 28,000) that
he has to pay for a house in Mutomo town, cater for food, shelter and clothing for
himself, his wife and other child, including paying school fees for the other child and
meeting their basic needs.

17. The Defendant avers that the sum of Kenya Shillings Four Thousand is what he can
afford as his monthly contribution towards the upkeep of the minor as he has no other
source of income apart from his monthly salary of Kenya Shillings twenty Eight
Thousand shillings.
 18. The Defendant avers that he will do his best to support the minor emotionally and
financially to the best of his capability.

19. The Defendant also avers that the Plaintiff should involve him in the decisions
concerning the minor as a parent.

REASONS WHEREFORE; the Defendant prays for judgement against the Plaintiff on the
counterclaim for :-

a) An order Granting Joint Legal Custody of the Minor to both the plaintiff and the defendant.
b) An order Granting Shared Actual Custody of the Minor to both the Plaintiff and the
Defendant.
c) An Order Granting equal parental responsibilities upon the plaintiff and the defendant.
d) An order granting Unrestricted and unhindered access to the minor by the defendant.
e) d)Costs of the suit and interest.
f) Any other award that this Honourable Court deems fit.

DATED at Mutomo this………………day…………………………………………..….2023

…………………………………..
ANASTACIA MBITHE & CO ADVOCATES
ADVOCATES FOR THE DEFENDANT

DRAWN & FILED BY:-

ANASTACIA MBITHE & CO ADVOCATES
MILLY MULTIPURPOSE HOUSE
OPPOSITE EQUITY BANK
P.O BOX 1
MUTOMO
EmaIL: anastaciahmbithe@gmail.com ;ambithe17@gmail.com
Tel no: 0700853277
Adm no: P105/18037/2020
Practice no: LSK/2023/12606

TO BE SERVED UPON: -
SUSAN MUSENYA MUMO
P.O BOX 16-90201
MUTOMO
Mobile No.0746551988
Email Address: lenahrich@gmail.com

REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE COURT AT MUTOMO
CHILDREN ‘S CASE NO E003 OF 2023
IN THE MATTER OF “ANK” MINOR
Suing through:
SUSAN MUSENYA MUMO (Suing as the next friend and mother of the minor)
……………….……..…………….……………..………………..……………PLAINTIFF

VERSUS

BRIAN KINUNA CHAPA…….……….………………….………………….........DEFENDANT

DEFENDANT LIST OF WITNESSES

1. BRIAN KINUNA CHAPA

2. Any other witness with leave of court

DATED at Mutomo this………………day…………………………………………..….2023

 …………………………………..
ANASTACIA MBITHE & CO ADVOCATES
ADVOCATES FOR THE DEFENDANT
DRAWN & FILED BY:-
ANASTACIA MBITHE & CO ADVOCATES
MILLY MULTIPURPOSE HOUSE
OPPOSITE EQUITY BANK
P.O BOX 1
MUTOMO
EmaIL: anastaciahmbithe@gmail.com ;ambithe17@gmail.com
Tel no: 0700853277
Adm no: P105/18037/2020
Practice no: LSK/2023/12606

TO BE SERVED UPON: -
SUSAN MUSENYA MUMO
P.O BOX 16-90201
MUTOMO
Mobile No.0746551988
Email Address: lenahrich@gmail.com
REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE COURT AT MUTOMO
CHILDREN ‘S CASE NO E003 OF 2023
IN THE MATTER OF “ANK” MINOR
Suing through:
SUSAN MUSENYA MUMO (Suing as the next friend and mother of the minor)
……………….……..…………….……………..………………..……………PLAINTIFF

VERSUS

BRIAN KINUNA CHAPA…….……….………………….………………….........DEFENDANT

DEFENDANT LIST OF DOCUMENT

1. Agreement dated 3rd October,2023

2. Certified copy of Mpesa Statements
3. Certified copies of Bank Statements
4. Payslip
5. Any other document with leave of court

DATED at Mutomo this………………day…………………………………………..….2023

…………………………………..
ANASTACIA MBITHE & CO ADVOCATES
ADVOCATES FOR THE DEFENDANT
DRAWN & FILED BY:-
ANASTACIA MBITHE & CO ADVOCATES
MILLY MULTIPURPOSE HOUSE
OPPOSITE EQUITY BANK
P.O BOX 1
MUTOMO
EmaIL: anastaciahmbithe@gmail.com ;ambithe17@gmail.com
Tel no: 0700853277
Adm no: P105/18037/2020
Practice no: LSK/2023/12606

TO BE SERVED UPON: -
SUSAN MUSENYA MUMO
P.O BOX 16-90201
MUTOMO
Mobile No.074655198

REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE COURT AT MUTOMO
CHILDREN ‘S CASE NO E003 OF 2023
IN THE MATTER OF “ANK” MINOR
Suing through:
SUSAN MUSENYA MUMO (Suing as the next friend and mother of the minor)
……………….……..…………….……………..………………..……………PLAINTIFF

VERSUS

BRIAN KINUNA CHAPA…….……….………………….………………….........DEFENDANT

BRIAN KINUNA CHAPA STATEMENT

I, BRIAN KINUNA CHAPA an adult male of sound mind and a resident Of Mutomo, Kitui
County in the Republic of Kenya STATES AS FOLLOWS:

That together with the Plaintiff we contracted a union of marriage sometimes in the year 2021 as
a result of which we were blessed with one issue namely AMALIA NZEMBI KINUNA and later
we separated sometimes in May,2023 due to irreconcilable differences. During the period I was
married to the plaintiff I always provided to the maximum capacity for the minor and the
plaintiff herein by sending the plaintiff resources to cater for the basics needs .That sometime in
July 2023,I was summoned by the children officer Mutomo Sub county and upon honouring the
said summons I was informed that the plaintiff herein had reported that I was not catering or
rather providing for the basic needs of the minor allegations which were false and the Children
officer directed that I sign a parental responsibility agreement which I did. The agreement was
that every month I send the plaintiff Ksh 4000 to cater for the basic needs of the minor. I have
also included the minor as a beneficiary under my NHIF cover.

Am in utter dismay and shock that the Plaintiff has resorted to unorthodox means of frustrating
me while adamantly asking for untenable amounts of money. Despite having another family to
take care, I still provide for the minor. The plaintiff has unrealistic expectation of me and
convoluted idea of my earnings. I earn a salary of Ksh28,000 and that it is out of the sum of
Kenya Shillings (Ksh 28,000) that I have to pay for a house in Mutomo town, cater for food,
shelter and clothing for myself, wife and my other child, including paying school fees for my
other child and meeting their basic needs. The sum of Kenya Shillings Four Thousand is what I
can afford as monthly contribution towards the upkeep of the minor as I do not have another
source of income apart from my monthly salary and that is what we had agreed at the children
office Mutomo. I will do my best to support the minor emotionally and financially to the best of
my capability. To that end, I am prepared to take care of education and medical expenses as well
I pray that I be granted access to the minor.

That’s all I wish to state.

DATED at Mutomo this………………day…………………………………..…..….2023

…………………………………..
BRIAN KINUNA CHAPA
DRAWN & FILED BY:-
ANASTACIA MBITHE & CO ADVOCATES
MILLY MULTIPURPOSE HOUSE
OPPOSITE EQUITY BANK
P.O BOX 1
MUTOMO
EmaIL: anastaciahmbithe@gmail.com ;ambithe17@gmail.com
Tel no: 0700853277
Adm no: P105/18037/2020
Practice no: LSK/2023/12606
TO BE SERVED UPON: -
SUSAN MUSENYA MUMO
P.O BOX 16-90201
MUTOMO
Mobile No.0746551988
Email Address: lenahrich@gmail.com