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Court of AppealPartially AllowedCivil Appeal No. 123 of 1997· [1997] KECA 19 (KLR)

ZULEIKHA MOHAMED NAAMAN v GHARIB SULEIMAN GHARIB [1997] KECA 19 (KLR)

Court of Appeal of Kenya

25 July 1997

SBS.E.O. Bosire

1,980 words in judgment

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The bottom line

Kenya's Court of Appeal ruled that a child's welfare, not religious custom or a parent's status, decides custody, and restored the children to their mother.

What this practically means

Executive summary

This was an appeal to the Court of Appeal at Mombasa against a ruling of Waki J. of the High Court, which on review had deprived the mother, Zuleikha Mohamed Naaman, of custody of the parties' two sons and granted full custody to the father, Gharib Suleiman Gharib, principally on the ground that under Muslim law the father is best suited to mould the character of boys over seven years. Bosire, Ag. J.A., writing the judgment of the court, allowed the appeal. He held that the Guardianship of Infants Act, Cap. 144, applies to custody disputes concerning Muslim children as it does to any other children, following the Court of Appeal for East Africa's decision in Abdul R. Razmi v. Sughra Sultana, and that section 17 makes the welfare of the infant the first and paramount consideration, excluding any superior right of the father. He rejected the argument that section 17 conflicts with the constitutional freedom of conscience, holding that the provision protects infants who cannot safeguard their own rights. The court further held that a judge on review has no jurisdiction to disturb a custody order absent evidence that circumstances affecting the children's welfare have changed to their detriment, and that Waki J. gravely misdirected himself by overturning a decision of a judge of equal jurisdiction without concrete evidence. Finally, the court clarified that Kadhis sitting with High Court judges under section 65 of the Civil Procedure Act are advisory assessors only, and judges should not express decisions collectively with them. The appeal was allowed, the ruling of 19th December 1996 was set aside, custody was restored to the mother with reasonable access to the father, and costs of the appeal and the superior court proceedings were awarded to the appellant.

Key legal issues

Applicability of the Guardianship of Infants Act to Muslim children

Holding

The Act, including the welfare principle in section 17, applies to custody disputes concerning children of Muslim parents; the father's right under Muslim law to custody of boys over seven does not displace the welfare principle.

Reasoning

The Court of Appeal for East Africa in Abdul R. Razmi v. Sughra Sultana had already held that the Act applies to Mohamedan infants as to any other infants. Section 17 requires the court to treat the welfare of the infant as first and paramount and forbids preferring the father's common-law or other right over the mother's claim. Section 17 does not inhibit parents' constitutionally protected freedom of worship; it safeguards infants who cannot protect their own rights.

p. 3

Jurisdiction on review to disturb a custody order

Holding

A judge on review may interfere with a custody order only where evidence shows circumstances touching the children's welfare have changed to their detriment; absent such evidence the judge gravely misdirects himself by overturning a decision of a judge of equal jurisdiction.

Reasoning

The respondent's application was for review, not appeal. Waki J. himself found no evidence that the children's educational and health needs had suffered, and no evidence that the shared custody arrangement had adversely affected them. Basing the change of custody on religious considerations alone, without evidence of detriment, was a misdirection and effectively overturned a coordinate judge's decision without jurisdiction.

p. 3

Role of Kadhis as assessors

Holding

Kadhis sitting with High Court judges under section 65 of the Civil Procedure Act are advisory assessors only; the judge is not bound by their opinions and decisions should not be expressed collectively.

Reasoning

The role of assessors in civil cases mirrors their role in criminal matters: advisory and no more. Both Mbogholi Msagha J and Waki J erred in expressing their decisions collectively with the Kadhis; the decisions are those of the judges alone, and credit or blame lies with them.

p. 4

Legal principles established

In any custody proceedings the court must regard the welfare of the infant as the first and paramount consideration, and neither parent's claim or common-law right is superior to the other's.
The Guardianship of Infants Act applies to questions of custody regarding Muslim (Mohamedan) children as it does to any other children.
A judge hearing an application for review of a custody order has jurisdiction to interfere only if circumstances touching the welfare of the children have changed to their detriment, and absent evidence thereof has no jurisdiction to overturn an order of a judge of equal and coordinate jurisdiction.
Kadhis sitting with High Court judges under section 65 of the Civil Procedure Act act as advisory assessors only; the judge is not bound to accept their opinion and the decision is that of the judge alone.

Court orders

1.Appeal allowed
2.Order made by Waki J. on 19th December 1996 set aside
3.Substituted order awarding custody of the two children, Suleiman Gharib and Mohamed Gharib, to the appellant with reasonable access to the father in any one week-end each month when he may take away the children
4.Costs of the appeal and of the proceedings before the superior court awarded to the appellant

Authorities

Legislation

Civil Procedure Actsection 65(1)(c)
Civil Procedure Actsection 65
Civil Procedure Actsection 3A
Civil Procedure RulesOrder XLIV rule 1
Guardianship of Infants Actsection 7
Guardianship of Infants Actsection 17
Constitution of Kenyasection 78

Cases cited (1)

Abdul R. Razmi v. Sughra Sultana
[1960] E.A 801

On appeal from: High Court of Kenya at Mombasa; Civil Appeal No. 103 of 1993
Jurisdiction invoked: First appeal to the Court of Appeal from a ruling of the High Court at Mombasa (statutory appeal; no specific constitutional provision stated)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "ZULEIKHA MOHAMED NAAMAN v GHARIB SULEIMAN GHARIB [1997] KECA 19 (KLR)", Case Analysis (1997). Civil Appeal No. 123 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/19/eng@1997-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.