R W W v S S [2016] KEKC 28 (KLR)
The bottom line
#A Nairobi Kadhi's Court ruled that divorce hearings stay public and media gagging orders are refused unless exceptional circumstances justify closing the court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Kadhi's Court to entertain gagging orders
The court found it had jurisdiction. Article 170(5) limits the Kadhi's Court to questions of Muslim law on personal status, marriage, divorce or inheritance, but the applicant invoked the inherent powers preserved by sections 1A, 2A, 3A and 63 of the Civil Procedure Act, and the court accepted these preserve inherent power to make orders necessary for the ends of justice.
The court relied on section 3A of the Civil Procedure Act as an enabling clause preserving inherent powers where there is no specific provision. It cited Miller v Miller to show courts have wide powers to impose secrecy in matrimonial matters falling within the exceptions to the constitutional public-hearing guarantee. It therefore held the Kadhi's Court competent to hear the gagging application notwithstanding the limits in Article 170(5) and section 5 of the Kadhis' Courts Act.
Whether the application offended Order 2 Rule 6 of the Civil Procedure Rules
The application did not offend Order 2 Rule 6 because the Applicant's answer to the petition already contained a prayer for an injunction.
The respondent argued that seeking injunctive/gagging relief not included in the pleadings was a departure from pleadings, relying on Mary Ngaru v Family Bank and James Archimeides Gichana. However, on perusal of the file the Kadhi confirmed that the Applicant's answer to the petition contained a prayer for an injunction, so the objection failed.
Whether the proceedings should be conducted in camera
The general rule is a fair and public hearing under Article 50(1) and transparency under Article 10(2)(c); exclusion is an exception exercisable only under Article 50(8) when circumstances dictate.
The court traced the open-justice principle (Bentham; M'kiara v M'ikiandi; Miller v Miller) and Article 50(8) exceptions protecting witnesses, vulnerable persons, morality, public order or national security. It held that a matrimonial party may, on proof that justice cannot be done otherwise, seek in camera hearing, but the applicant had not displaced the default of transparency. The court disagreed that open justice in family law matters is unconstitutional.
Legal principles established
#- The general rule is open justice; a court may only exclude the public and media in the circumstances contemplated by Article 50(8) of the Constitution
- A Kadhi's Court has jurisdiction to hear an application for in camera proceedings/gagging orders in a matrimonial matter before it, drawing on its inherent powers under section 3A of the Civil Procedure Act
- In a matrimonial suit, upon proof that justice cannot be done otherwise, a party may apply for hearing in camera and even prohibition of subsequent publication in exceptional cases
Court orders
#- 1.Unless the Court directs that the media and members of the public be excluded pursuant to Article 50(8) of the Constitution, the trial will be conducted in public.
- Jurisdiction invoked
- Article 170(5) of the Constitution (as limited by it); applicant invoked sections 1A, 2A, 3A and 63 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "R W W v S S [2016] KEKC 28 (KLR)", Case Analysis (2016). Notice of motion dated 11th January 2016 (divorce petition suit, Kadhi's Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2016/28/eng@2016-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.