RMM v BAM
The bottom line
#Kenya's Court of Appeal confirmed that Muslim spouses can use the High Court to divide matrimonial property, and the case must be heard afresh.
What this practically means
#Executive summary
#Key legal issues
#Which Constitution applies to a suit filed and substantially heard before the promulgation of the Constitution of Kenya, 2010
The repealed Constitution applied; the 2010 Constitution could not be applied retrospectively because its provisions might affect vested property rights accrued before promulgation.
The suit was filed three years before promulgation and all but one witness had been heard. At the heart of the suit was the right to property claimed on both sides. Applying the Supreme Court's guidance in Samuel Kamau Macharia, the Court held that applying the new constitutional provisions could divest vested rights, which ruled out retrospective application.
Whether the High Court or the Kadhi's Court had jurisdiction over distribution of property acquired in an Islamic marriage
The High Court had concurrent jurisdiction; section 5 of the Kadhis' Courts Act expressly does not limit the High Court's jurisdiction. The trial court erred in principle in declining jurisdiction.
Section 5 of the Kadhis' Courts Act confers jurisdiction on the Kadhi's Court but expressly preserves the jurisdiction of the High Court and subordinate courts. The trial court should have opted for the law that best accorded with the Constitution and protected both parties' interests, including constitutional non-discrimination provisions and ratified international treaties.
Whether the Married Women's Property Act 1882 applies only to monogamous marriages
The Act is of general application and applies to Muslims as to non-Muslims; it does not define marriage and section 17 concerns title to or possession of property, the nature of the marriage notwithstanding.
The Act's purpose was to keep spouses' property rights separate; section 17 is about ascertaining title, not transferring property between spouses. The trial court's narrow, technical interpretation based on monogamy was erroneous, and the complexity of a potentially polygamous union did not oust the Act.
Whether Essa v Essa was obiter, distinguishable, or should be overruled
Essa was not obiter; the parties there were both Muslim, polygamy was permitted, and the dispute concerned matrimonial property. It was not time to overrule it, and the trial court erred in departing from it.
The Court found the trial court's three reasons for ignoring Essa unsustainable. The Originating Summons in Essa pleaded section 17 of the 1882 Act, the Court of Appeal applied Pettit v Pettit, and Omolo JA expressly held the Act of general application, with Lakha JA agreeing. The issue had also been raised and rejected by Maraga J in Amina O. Abdulkadir v Ravindra N. Shah.
Whether the two marriages (common law/presumed and Islamic) fused or were mutually exclusive
The marriage certificate showed the wife was recorded as a virgin at the 1995/1999 Islamic marriage, indicating a new marriage rather than a conversion; the trial court should have chosen the law best according with the Constitution and protective of both parties.
The Court examined the Kadhi's marriage certificate and concluded there was no intention to convert an existing marriage. Faced with the complexity of overlapping marital regimes, the trial court erred in principle by simply declining jurisdiction in favour of the Kadhi's Court instead of applying the appropriate law.
Legal principles established
#- The Married Women's Property Act 1882 is an Act of general application that applies to Muslims as it does to non-Muslims in Kenya, irrespective of whether the marriage is monogamous or potentially polygamous; the Essa v Essa pronouncement to that effect was not obiter and binds subordinate courts.
- A court's jurisdiction flows from the Constitution or legislation or both, and a court cannot expand its jurisdiction through judicial craft or innovation.
- Section 5 of the Kadhis' Courts Act does not oust the jurisdiction of the High Court, which has concurrent jurisdiction with the Kadhi's Court over questions of Muslim law where all parties profess the Muslim religion.
- The Constitution of Kenya, 2010 did not apply retrospectively to a suit filed and substantially heard before its promulgation where its application would affect vested property rights accrued before promulgation.
Court orders
#- 1.Appeal allowed; judgment and decree of the High Court set aside
- 2.Matter remitted to the High Court for hearing and determination of the Originating Summons in accordance with the law
- 3.Re-hearing to be before any Judge of the High Court other than Maureen Odero J
- 4.Originating Summons to be heard expeditiously and in any event within six (6) months of the judgment
- 5.Costs of the appeal to be borne by the respondent
- 6.Costs in the High Court to abide the final outcome of the suit
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction; dispute arose from an Originating Summons under section 17 of the Married Women's Property Act 1882, section 3 of the Judicature Act, Order 36 Rule 7 of the Civil Procedure Rules and sections 3A and 63 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RMM v BAM", Case Analysis (2015). Civil Appeal 267 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/1013/eng@2015-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.