[2010] KEHC 321 (KLR)
The court held that the best interests of the children, who are of tender age, require that they remain in their familiar home environment rather than being relocated to a public place such as a club or cottage. The court found that it would be cruel and contrary to their welfare to uproot them due to parental...
Source-derived case information.
- Citation
- [2010] KEHC 321 (KLR)
- Parties
- Plaintiff: Veronica Wandia Wambugu; Defendant: Stephen Maitethia Kirimi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 146 of 2010
- Procedural Posture
- Civil Application / Ruling on Interlocutory Application for Mandatory Injunction
- Outcome
- mandatory injunction granted in favour of the plaintiff
- Judges
- AM Cockar, JW Lessit
- Legal Topics
- Child Custody, Best Interests of Child, Mandatory Injunction, Matrimonial Home Access
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Veronica Wandia Wambugu
Plaintiff
Stephen Maitethia Kirimi
Defendant
Procedural Posture
Civil Application / Ruling on Interlocutory Application for Mandatory Injunction
Legal Issues
- 1 Whether the court should grant a mandatory injunction to restore the plaintiff and her minor children to the matrimonial home pending further orders.
- 2 Whether the best interests of the children require reinstatement to the matrimonial home rather than alternative accommodation.
Ratio Decidendi
The court held that the best interests of the children, who are of tender age, require that they remain in their familiar home environment rather than being relocated to a public place such as a club or cottage. The court found that it would be cruel and contrary to their welfare to uproot them due to parental disagreement. The mother, being their primary caregiver and expecting another child imminently, should remain with them in the matrimonial home unless it is later shown that she is unfit. The court therefore granted a mandatory injunction directing the defendant to restore the plaintiff and the children to the matrimonial home, with compliance to be ensured by local authorities.
Court Disposition
mandatory injunction granted in favour of the plaintiff
Orders
- A mandatory injunction is issued directing the defendant to restore the plaintiff and the two minor children to the matrimonial home NTIMA/NTAKIRA/3795 until further orders of the court.
- The O.C.S. Meru and Local D.O. are ordered to ensure compliance with the above order.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
H.C.C.C. CASE NO 146 OF 2010
LESIIT J
VERONICA WANDIA WAMBUGU...................................................................................................PLAINTIFF
V E R S U S
STEPHEN MAITETHIA KIRIMI......................................................................................................DEFENDANT
R U L I N G
The submissions of both counsel are considered on the issue pertaining to prayer 2 of the application. The respondent has offered to keep his children aged 2 years and 6 years and their mother in a cottage or club while he looks for alternative housing. The explanation given why the children and their mother cannot go back to their home is that returning them to the matrimonial home will endanger the life of the defendant.
I have taken into account
1. The age of the children 2 years and 6 years. I have noted that the defendant accepts are his children.
2. I have noted the plaintiff is expecting a baby next month, which is 2 or so weeks to a month from now.
When considering an issue of the nature before me, the guiding principle is that the action taken by the court should be one which is to the best interest of the children.The children are of tender age.
I think that it will be most cruel to uproot them from their home a safe haven and environment for them and “throw” them into a club or cottage, a public place which they are not used to, just because the parents have disagreed with one another.
In the best interest of the children of the union before me.I think that they should be reinstated to their home due to their age and bearing in mind their best interest, the mother must live with them until it is shown to court that their mother is not the correct person to care and nurture them.
I will make the following orders which are subject to renew from time to time:-
1. The order in terms of prayer 2 of the application is granted. The court issues a Mandatory Injunction directed at the defendant to restore the applicant and the two minor children of the union to the matrimonial home NTIMA/NTAKIRA/ 3795 until further orders of this court.
2. The O.C.S. Meru and Local D.O. ordered to ensure compliance of the orders issued in 1 above.
3. The parties to appear before court for further directions on 2nd December 2010 at 9 a.m.
Dated Signed and delivered at Meru this 19TH day of November 2010.
LESIIT, J
JUDGE
In the presence of the parties
Kirimi – Court Clerk.
Mr. C. Kariuki for plaintiff
Mr. Mwenda Mwarania for defendant
LESIIT, J
JUDGE
DATE:19th November 2010
CORAM
Hon. Lady Justice J. Lesiit – Judge
C/Clerk Kirimi/Cecily
Mr.Plaintiff/Applicant
Mr. For Defendant/Respondent
ORDER
Judgment/Ruling delivered in open court.
J. LESIIT
JUDGE.